Howard & Herrin v. Nashville, C. & St. L. Ry. Co.

• Decision Date: 03 July 1926
• Parties: HOWARD & HERRIN v. NASHVILLE, C. & ST. L. RY. CO.
• Court: Tennessee Supreme Court

284 S.W. 894

153 Tenn. 649

HOWARD & HERRIN v. NASHVILLE, C. & ST. L. RY. CO.

Supreme Court of Tennessee.

July 3, 1926

Appeal from Circuit Court, Bedford County; John E. Richardson Judge.

Action by Howard & Herrin against the Nashville, Chattanooga & St Louis Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

J. D Murphree, of Shelbyville, for appellant.

Fitzgerald Hall, of Nashville, Thos. N. Greer, of Shelbyville, Wm Waller and Frank Slemons, both of Nashville, for appellee.

CHAMBLISS J.

A dog, walking slowly south on the fenced track of the railroad company, in broad daylight, meeting and failing to yield the right of way to a heavy north-bound passenger train, was struck and killed. The suit was brought to recover $1,000 as his value. He was a foxhound on the scent, and his extraordinary value rests largely on a characteristic exemplified by the manner of his death--he could neither be cajoled nor intimidated to leave the track--was removable only by superior physical force, which in this case he deliberately encountered.

The train was rounding off of a high bank above a river, and moving at a speed probably too great to admit of sudden stoppage with safety. The engineer was on the lookout, but did not observe the statutory precautions. He did not see the dog, but could not have avoided the accident by the use of the statutory precautions if he had seen him.

The testimony shows that a fox hunt was in progress, in which many dogs and their owners and judges were participating; that the owners of this dog knew of the characteristic already noted--that if a fox should go on the track this dog would follow and would face a locomotive to his death in the pursuit. It further appears that many of the hunting party were present when the dog took to the track, and permitted the hunt to progress along the fenced tracks of the defendant. Upon the appearance of the train efforts were unavailingly made by some of the hunting party to call off the dog, and, also, a railroad track walker endeavored without success to drive or induce him to yield free passage to the train.

Pleas raising substantially the following defenses were interposed and sustained by the trial judge on a motion for peremptory instructions, and the suit dismissed: That (1) the statutory precautions do not apply to dogs on the chase, if they apply to dogs at all; that (2) since foxhounds will not leave a trail even to avoid obvious and certain death the owners in permitting their dogs to go on the railway's fenced track were guilty of the grossest negligence, as were the dogs themselves; that (3) the statutory precautions lack due process of law because of their arbitrary, unreasonable and unnecessary requirements; and that (4) the statutory precautions impose a direct and serious burden upon interstate commerce.

The pertinent statute is subsection 4 of section 1574 of Shannon's Code, reading 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."

The first of the defenses interposed challenges the applicability of this section of the statute to this foxhound dog.

While it must be conceded that in some of our published reports, and quite generally in the courts of the state, this statute has been treated as applying to dogs, we have no published opinion directly so adjudicating. Specific reference is hereinafter made to certain of these decisions. It is now earnestly insisted that whatever may have been a fair construction of this section of the statute at the time of its passage and during some years following, under modern present day conditions the provisions of this statute cannot reasonably be held to apply to an animal of the relatively slight weight and size of the average dog.

The purpose of the original railroad statute (chapter 94, Acts of 1855-56, now Shannon's Code, § 1574 et seq.), is thus declared therein: "In order to prevent accidents upon railroads, the following precautions shall be observed." And it cannot be doubted, as said by this court in Railroad v. Brooks, 125 Tenn. 260, at page 268, 143 S.W. 64, that "the object of the statute is primarily to protect human life"--human life--that thing which cannot be adequately compensated for in dollars and cents. This is the view in which this drastic statutory provision, carrying with it absolute liability, may be justified and sustained.

While it is true that in Fink v. Evans, 95 Tenn. 413, 32 S.W. 307, Mr. Justice Wilkes remarked that, "this court has heretofore held that a dog is such an animal as the statute contemplates," he cites no case, and this expression was a recognition rather than a decision; and, too, since that case was reversed on a finding of fact that the engineer had used every possible precaution, either under the statute or the common law, to avoid killing the dogs, this statement, while pertinent to the discussion, was not strictly necessary to a decision of the case. Moreover, when some ten years later this same learned jurist was called upon to pass directly upon the applicability of this statute to a form of animal obviously not an obstruction, he plainly recognized that the distinction is properly drawn between those forms of animal life which constitute an obstruction and those which do not. Said he, in Nashville & K. R. Co. v. Davis (Tenn. 1902), 78 S.W. 1050:

"It would not seem that a goose was such an obstruction as would cause the derailment of a train, if run over. It is true, a goose has animal life, and, in the broadest sense, is an animal; but we think the statute does not require the stopping of trains to prevent running over birds, such as geese, chickens, ducks, pigeons, canaries, or other birds that may be kept for pleasure or profit. Birds have wings to move them quickly from places of danger, and it is presumed that they will use them (a violent presumption, perhaps, in the case of a goose, an animal which appears to be loath to stoop from its dignity to even escape a passing train). But the line must be drawn somewhere, and we are of the opinion that the goose is a proper bird to draw it at. We do not mean to say that in the case of recklessness and common-law negligence there might not be a recovery for killing geese, chickens, ducks, or other fowls, for that case is not presented. Snakes, frogs, and fishing worms, when upon railroad tracks, are, to some extent, obstructions; but it was not contemplated by the statute that for such obstructions as these trains should be stopped, and passengers delayed."

Undoubtedly, a full grown goose is in greater degree an obstruction than a small sized dog. Can it be said that either is? And can the statute logically be held applicable to the dog, the cat, or the fox and not applicable to such a valuable fowl as the highly bred rooster, the turkey or the peacock?

In the comparatively recent case of C. N. O. & T. P. Railway v. Ford, 139 Tenn. 291-295, 202 S.W. 72, 73, Chief Justice Green, denying recovery under the statute for an unregistered dog, while conceding that dogs are property, and that it had been recognized in Fink v. Evans, supra, that the statutory precautions apply to dogs on the track, significantly and pertinently to the present discussion, says:

"A collision with an ordinary dog would not menace the safety of the passengers on a train, and there is no reason to observe the statutory precautions for this reason. On a like ground it has been held unnecessary to take statutory precautions to avoid a collision with a goose"--citing Nashville, etc., R. Co. v. Davis, supra.

That is, neither a goose nor a dog is an obstruction to a railway train, and human life, the protection of which is the primary purpose of the statute, is not imperiled by failure to observe these requirements when these objects appear. If this is the purpose of these rigid requirements, then should not the application of this statute be limited to "persons"--human life--on the track, and to such animals or other obstructions only as may imperil lives on the train?

An analysis of the language of the act would seem to support this view. It is apparent that in carrying out this fundamental or primary purpose appropriate language has been used: "When any person, animal, or other obstruction appears upon the road," etc. That which calls for the taking of these statutory precautions, failure to observe which entails drastic penalties, must be of a character which in some appreciable degree constitutes an obstruction to the free passage of the train, with danger to the lives and limbs of persons riding thereon.

Nor is the realm of technicality invaded if the word "obstruction" be thus given its ordinary, everyday meaning. It is defined in Webster's New International Dictionary as "that which obstructs or impedes; obstacle; impediment; hindrance. Sny.--Bar, barrier, clog, check." So, to obstruct is "to block up; to stop up or close, as a way."

This court has said that obstruction "can only mean that which may * * * hinder the free and safe passage of the train, or that which may receive an injury or damage, such as would be unlawful to inflict, if run over or against by the train, as in case of stock, or a man approaching on the track." Nashville & C. R. Co. v. Carroll, Adm'r, 53 Tenn. (6 Heisk.) 347.

It may be said that the strict limitation of the statute to an obstruction on the track, under the modern conditions above noted, would exclude a child, or any person. But, in harmony with...