Gordon v. Tennessee Cent. Ry. Co.
| Decision Date | 24 February 1934 |
| Citation | 69 S.W.2d 611,167 Tenn. 302 |
| Parties | GORDON v. TENNESSEE CENT. RY. CO. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Davidson County; A. B. Neil, Judge.
Suit by Harriet S. Gordon against the Tennessee Central Railway Company. Judgment for defendant was reversed by the Court of Appeals, and defendant brings certiorari.
Decree of Court of Appeals reversed, and suit dismissed.
C. H Rutherford and James Rutherford, both of Nashville, for plaintiff in error.
Roberts & Roberts, J. C. R. McCall, and Walter Stokes, all of Nashville, for defendant in error.
This is a suit to recover under the first count for personal injuries, and under a second count for injuries to plaintiff's automobile, in which she was riding when a collision occurred at a street crossing with a small car operated by defendant's employees, described in the declaration as "a certain motorcycle, or hand car, being a small four wheeled concern." Both of these were common-law counts. The jury found on the facts for the defendant. At the conclusion of the evidence and before the charge of the court, plaintiff offered to amend her declaration by filing a third count, charging violation of the statutory precautions applicable to the operation of railroad trains. The trial judge ruled that the statute did not apply to this kind of car; subsection (4) of Code, § 2628, and sections 2629, 2630, being considered. The Court of Appeals overruled the assignment challenging the action of the jury, approved by the trial court, on the common-law counts, but, holding that the car was within the statute reversed and remanded. Certiorari has been granted and the case heard here.
The sole question is whether or not such a car as is described is within the purview of the statute.
The record shows that Faw, P.J., dissented from the holding of the majority of the court that the statutory precautions "apply to the operation of a gasoline motorcar by a section crew in the course of their work on a railroad track." In this view we concur.
The majority opinion of the Court of Appeals quotes from and relies on the opinion of this court in Stem v. Nashville Interurban Railway, 142 Tenn. 494, 221 S.W. 192. In that case it was the character of the road and its operation as a whole which was determinative, rather than that of the particular car involved, which was a combination passenger and freight carrier, readily and naturally susceptible of equipment in those regards contemplated by the very terms of the statute.
Subsection (4), which alone has possible application, reads as follows:
"Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded the brakes put down, and every possible means employed to stop the train and prevent an accident."
As indicated in the Stem Case, the motive power is not controlling, but, first, quite clearly, it is the operation of a "locomotive" which is intended to be regulated; and, second, it is the stopping of a "train" which is the objective in contemplation. This appears not only from the express use of the terms "locomotive" and "train," but from the language of the specific requirements touching sounding of "the alarm whistle" and putting down of the brakes, expressions suggestive of a locomotive and attached heavy train, and foreign to a small work car, whether propelled by hand, or gasoline.
This court, speaking through Mr. Justice Lurton, quite definitely approved this construction in Patton v. R. Co., 89 Tenn. 370, 15 S.W. 919, 920, 12 L. R. A. 184, by the use of this language: "...
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