Greer v. Nashville, C. & St. L. Ry. Co.
| Decision Date | 21 February 1900 |
| Citation | 56 S.W. 850,104 Tenn. 242 |
| Parties | GREER v. NASHVILLE, C. & ST. L. RY. |
| Court | Tennessee Supreme Court |
Appeal from circuit court, Davidson county; J. W. Bonner, Judge.
Action by J. W. Greer against the Nashville, Chattanooga & St. Louis Railway. From a judgment in favor of plaintiff, defendant appeals. Reversed.
E. H East and J. B. De Bow, for appellant.
R. L Kennedy, for appellee.
This is an action for damages for killing the plaintiff's mare. It was tried before the judge in the court below upon an agreed statement of facts, and judgment was rendered for $90 the agreed value of the mare. The only question in the case is that of legal liability or nonliability under the facts of the case. The road had fenced its track through the premises where the mare was killed. It had left a private passway for the owner to go from one part of his field or farm to another when it first built the fences. These fences came up on either side to this private crossway, and gates were erected on each side of the track across the way, but no stock gaps were built. The gates had latches and were in good condition, but the latches were not automatic, and required to be put in place by persons passing through them. One of these gates was left open by some one not connected with the plaintiff or the road, and the fact that it was open was not known either to the plaintiff or the defendant. Shortly after the gate was left open, the plaintiff's mare passed through it and went upon the track, and followed it some distance, when she was run over by the train and killed. It was further agreed that the distance the mare was first seen was sufficient for an engineer on the lookout to have had time to see her and stop his engine before striking her, but that the engineer failed and neglected to do so, thus killing her. She was killed at night. On the day before, at 11 o'clock, plaintiff had seen the gate, and it was properly closed. It was also agreed that occasionally trespassers, huntsmen, or a section hand in want of water would go through this gate to a spring near by. The value of the mare is fixed by agreement at $90.
The rule of law in regard to private ways is laid down in Railroad Co. v. Thompson, 101 Tenn. 197, 47 S.W 151. It is there held that the railroad is not required or allowed to fence public highways, private ways, streets, alleys, sidewalks, public grounds, commons, and ways leading to burying places, churches, school houses, etc. The question is whether this private crossing, intended for the benefit of the owner of the lands, and to furnish a means of passing from one field to another, is embraced in the description given in that case, and is a "private way," in the sense in which that term is used in the statute there referred to. It is apparent that this question is one of much importance to railroads and landowners, as there are great numbers of such crossings, and they are to be found upon almost all inclosed lands through which railroads run. The railroad cannot refuse such crossings at reasonable places, but, at the same time, it is a matter of convenience to the landowner alone. The rule in regard to private crossings is laid down in 3 Elliott, R. R.§ 1200, in these words: ...
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