Horne v. Memphis & Ohio R.R. Co.

• Citation: 41 Tenn. 72
• Parties: THOMAS C. HORNE v. MEMPHIS AND OHIO RAILROAD COMPANY.
• Decision Date: 30 April 1860
• Court: Tennessee Supreme Court

41 Tenn. 72

THOMAS C. HORNE

v.MEMPHIS AND OHIO RAILROAD COMPANY.

Supreme Court of Tennessee.

April, 1860.

FROM SHELBY.

This cause was tried before Judge John C. Humphreys, at the January term, 1859. Verdict in favor of defendants. The plaintiff appealed.

Jesse L. Hewons, for the plaintiff in error.

Wm. Thompson, for the defendants in error.

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

The Code, at §1166, in order to prevent accidents upon railroads, requires that certain precautions shall be observed; and in the two succeeding sections defines what shall be the liabilities of railroad companies, as they may or may not observe, or cause to be observed, these precautions, by their agents and servants, and declares that the proof of their observance shall be upon the company. And in §1169 it is enacted that where a railroad company is sued for killing or injuring stock, the burden of proof that the accident was unavoidable shall be upon the company; and the engineer, agent, or employee shall in no case be a witness for it.

The question here is as to the force to be given to that part of the above statute which prohibits the engineer, agent, or employee of a railroad company from becoming its witness, and which was taken into the Code from the act of March 2, 1858, ch. 44,--the competency of a witness in such a case, anterior to that time, being determinable entirely upon common-law principles. It also becomes necessary, in this connection, to consider the clause placing the onus probandi upon these corporations.

The accident--namely, the killing of the cow of the defendant in error--for which the present action is brought occurred, according to the bill of exceptions, in August or September, 1857; and, if need be, we think it might be readily shown that this act of Assembly cannot have a retrospective construction, so as to embrace this case. It is only requisite that we refer to Dosh v. Van Kleeck, 7 Johns. 478, and the authorities there cited, to establish this position. But as we have others cases coming directly within these provisions of the Code, it becomes proper that we give them a construction. The power of the Legislature to pass them has been denied; but in order to determine whether any constitutional question be raised, it is first necessary that we affix to them a meaning, and in doing so we are to remember that if there be a doubt as to their interpretation, that construction is to be taken which shall be found in harmony with the Constitution.

The rule that after it has been established by evidence on the part of the plaintiff that his stock has been killed or injured by the railroad company, the onus probandi is thrown upon the defendant, we do not understand to be new. It is simply the announcement of a common-law principle. In Christe v. Griggs, 2 Camp. 79, it was held that proof of the injury to the plaintiff threw upon the defendant the burden of showing that he had exercised all the care which he was bound to do.

In Stokes v. Saltonstall, 13 Pet. 181, which was an action for injuries to a passenger occasioned by upsetting a stagecoach, the court laid down the rule as to the burden of proof in the following language: “The facts that the carriage was upset, and the plaintiff's wife injured, are prima facie evidence that there was carelessness or negligence, or a want of skill on the part of the driver, and throws upon the defendant the burden of proving that the accident was not occasioned by the driver's fault. It being admitted that the carriage was upset and the plaintiff's wife injured, it is incumbent on the defendant to prove that the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the business in which he was engaged, and that he acted on this occasion with reasonable skill and with the utmost prudence and caution; and if the disaster in question was occasioned by the least negligence, or want of skill or prudence on his part, then the defendant is liable in this action.” This rule as to the burden of proof was applied to railway companies in Carpue v. The London and Brighton Railway Company, 52 B. 747; and also in Skinner v. The London and Brighton Railway Company, 2 Eng. Law. & Eq. 360. So, also, in Ellis v. The Portsmouth and Roanoke Railroad Company, 2 Ired. 138. This last was a case of damage to the plaintiff's fence by a fire caused by the sparks emitted from the defendant's engine.

The precautions which this statute requires railway companies to observe, in order to prevent the destruction of human life and property, impose, as we believe, no new or additional duties over and above what the common law of this State, when applied to their operations, demanded; and certainly none but such as are reasonable and within the power of the Legislature to enact. Redf. on Rys., §232, and cases cited in note 1. What, then, are we to understand by the clause, “and the engineer, agent, or employee of the company shall in no case be a witness for it?” Did the Legislature intend to render incompetent all engineers, agents, and employees of the company, whether the matter drawn in question involved their carelessness or negligence or not, or only such as were directly interested by means of being thus implicated? If the latter be its true meaning, as we think it is, then it simply affirms a common-law principle.

In an action against the principal for damages occasioned by the neglect or misconduct of his agent or servant, the latter is not a competent witness for the defendant without a release; for he is, in general, liable over to his master or employer, in a subsequent action, to refund the amount of damages which the latter may have paid. The principle of this rule of action applies to the relation of master and servant, or employer and agent, wherever that relation, in its broadest sense, may be found to exist; as, for example, to the case of a pilot in an action against the captain and owner of a vessel for mismanagement while the pilot was in charge, or of the guard of a coach implicated in the like mismanagement, in an action against the proprietor. The doctrine is applicable to railway companies, and to corporations in general. Perhaps the most...