Haley v. Mobile & Ohio R.R. Co.

• Decision Date: 30 April 1874
• Citation: 66 Tenn. 239
• Parties: HALEY v. MOBILE and OHIO RAILROAD CO. et al.
• Court: Tennessee Supreme Court

66 Tenn. 239

HALEY

v.MOBILE and OHIO RAILROAD CO. et al.

Supreme Court of Tennessee.

April Term, 1874.

FROM GIBSON.

Appeal from the Law Court. G. B. BLACK, Judge.

ALEX. W. CAMPBELL for plaintiff.

MCFARLAND and HEALE & WILLIAMSON for defendant.

DEADERICK, J., delivered the opinion of the court.

In June, 1871, plaintiff instituted his suit in the Law Court of Memphis against defendants.

The action was brought to recover damages from defendants, on the ground that the death of intestate was caused by the wrongful acts of defendants, under the provisions of the Code, secs. 2291-2.

On the -- day of November, 1870, intestate being an employee of defendants, was crushed and instantly killed by a train of cars of defendants, in their yard at Humboldt.

At the time intestate was killed an engineer of defendants was transferring three sleeping cars from the Mobile and Ohio Railroad to the Memphis and Louisville Railroad, around a switch or horn, on the East side of the crossing of said roads. The engine was behind the sleeping cars pushing them towards the Memphis and Louisville Road at the rate of about six miles an hour. A man was on the lookout on the front of the foremost moving coach. There was no communication by bell rope from this car with the engine, nor could any signal have been seen from said car by the engineer, owing to the acuteness of the curve. This horn or curve was around and near to the depot platform, so near that the sleeping cars in passing around often touched it, although freight cars could pass it without danger to a person standing between the platform and the cars. The whistle was blown in starting the cars around the curve, and the bell was rung all the way around. The man upon the lookout on the front car saw intestate on the track and warned him. He passed towards the platform and leaned against it to let the train pass, and the front car crushed him in passing. He had time to have avoided the danger, and could have escaped, stepping off in a different direction, or by stooping below the platform after he reached it.

The jury, under the charge of the court, rendered a verdict in favor of plaintiff for five dollars, and the court refusing a new trial, the plaintiff has appealed in error to this court.

The plaintiff in error insists that the Circuit Judge erred in certain instructions given to the jury, and also in refusing to charge as requested by him.

The judge instructed the jury that if plaintiff's intestate “was killed by defendants, and died instantly, no vindictive or exemplary damages in this case could be recovered by plaintiff.”

There is much conflict in the holdings of the courts of the different states where statutes similar to our have been passed as to the kinds of damages recoverable by the representative of the deceased.

In Massachusetts exemplary damages are expressly disallowed by the terms of the act allowing the right of action.

In other States the amount recoverable is restricted by the acts authorizing the action.

In most of the States where the action has been authorized by statutes, the damages are confined by the terms or construction of the acts to compensation for the pecuniary loss.

Our statute provides that the right of action which a person, who dies from injuries received, would have had, had death not ensued, shall pass to his personal representative. Code, sec. 2291.

The right of action with all its incidents passes to the personal representative, and must be treated as if the injured party had brought it.

In Connecticut, where an act provides that “actions for injuries to the person, whether the same do or do not result in death, shall survive to the executor or administrator,” exemplary damages are allowed. Sedg. on Dam., 552, note 2, citing 29 Conn., 496.

The terms of the Connecticut act are very nearly like ours. The meaning in both is, that the right of action, which the deceased would have had, passes to his personal representative, and in Connecticut it has been held that this includes the right, in a...