Illinois Cent. R. Co. v. Kuhn

• Decision Date: 11 May 1901
• Parties: ILLINOIS CENT. R. CO. v. KUHN.
• Court: Tennessee Supreme Court

64 S.W. 202

107 Tenn. 106

ILLINOIS CENT. R. CO. v. KUHN.

Supreme Court of Tennessee.

May 11, 1901

Error to circuit court, Shelby county; L. H. Estes, Judge.

Action by Simon Kuhn against the Illinois Central Railroad Company for injuries received while a passenger on defendant's train. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Fentress & Cooper, for plaintiff in error.

Watson & Fitzhugh, for defendant in error.

CALDWELL J.

On the night of April 29, 1897, a sleeping car attached to a passenger train of the Illinois Central Railroad Company was derailed and thrown down an embankment near the village of Boaz, Ky. Simon Kuhn, one of the sleeping passengers, was thrown violently from his berth, and seriously injured in his person. Some time thereafter he sued the company in the circuit court of Shelby county, Tenn., and there obtained verdict and judgment for $1,000 damages. From the action of the trial judge in refusing a new trial, the company prosecutes this appeal in error.

The first assignment of error complains of the failure of the court below to sustain the demurrer which challenged the plaintiff's declaration for not averring that the wrong therein attributed to the defendant was actionable under some law or statute of the state of Kentucky, where his injury was received. The demurrer was rightly overruled. Having sued to enforce a common-law liability only, it was not necessary that the plaintiff should aver the existence of any local law giving him a right of action. It was sufficient in such case for him to aver with reasonable circumstantiality, as he did that the defendant was a common carrier, and that while its lawful passenger the car in which he was being transported was overturned, to his personal injury and damage. That was enough to disclose an actionable breach of common-law duty on the part of the defendant, and more was not required by any rule of good pleading. Railroad v. Reagan, 96 Tenn 128, 33 S.W. 1050.

The second assignment of error is directed against the refusal of the court to instruct the jury "that the burden is upon the plaintiff, Kuhn, of showing affirmatively negligence on the part of the defendant." This instruction is not sound; hence its refusal by the court was proper. Although not insurers against all damage caused otherwise than by the act of God or the public enemy, as common carriers of goods are, passenger carriers are nevertheless legally bound to exercise the utmost degree of care, skill, and foresight to accomplish a safe transportation; and this obligation as to railways includes the requisite attention not only in the selection and use of suitable carriages, motive power appliances, and servants, as in the case of stage lines, but also the proper construction and maintenance of roadbed and tracks. Hutch. Carr. (2d Ed.) §§ 498-505, 524-533; 4 Elliott, R. R. §§ 1583-1589; Ray, Neg. Imp. Duties, § 4; Cooley, Torts, 642; Christie v. Griggs, 2 Camp. 79; Stokes v. Saltonstall, 13 Pet. 181, 191, 10 L.Ed. 115; Pennsylvania R. Co. v. Roy, 102, U.S. 451, 26 L.Ed. 141; Gleeson v. Railroad Co., 140 U.S. 435, 11 S.Ct. 859, 35 L.Ed. 458; Ingalls v. Bills, 9 Metc. (Mass.) 1, 43 Am. Dec. 346; Railroad Co. v. Elliott, 1 Cold. 611, 616, 78 Am. Dec. 506; Railroad Co. v. Messino, 1 Sneed, 221; Railroad v. Mitchell, 11 Heisk. 400; Ferry Cos. v. White, 99 Tenn. 256, 264, 265, 41 S.W. 583; Railroad Co. v. Sanger, 15 Grat. 230, 237; Dodge v. S. S. Co. (Mass.) 2 L. R. A. 84, note (s. c. 19 N.E. 373); Palmer v. Pennsylvania Co. (N. Y.) 2 L. R. A. 252, and note (s. c. 18 N.E. 859); Railroad Co. v. Anderson (Md.) 8 L. R. A. 673, note (s. c. 20 A. 2, 20 Am. St. Rep. 483); Railroad Co. v. Burt (Ala.) 13 L. R. A. 95, note (s. c. 9 So. 410); Whart. Neg. §§ 626-636; 5 Am. & Eng. Enc. Law, 519-537, and citations; 1 Shear. & R. Neg. (5th Ed.) § 51; 2 Id. §§ 494, 495, 497, 499. Human experience and observation, in connection with the laws of nature, have shown that a faithful discharge of those duties ordinarily prevents the upsetting of the stagecoach or the derailment of the railroad car, and that such a catastrophe seldom occurs except through the omission of some part of the carrier's obligation. Therefore, all the law required of this plaintiff, in the first instance, was to show that the defendant was a common carrier, that he was its lawful passenger, and that the injuries sued for were caused by the derailment and overturning of the coach in which he was traveling. That, without more, was sufficient to constitute a prima facia case of actionable negligence on the part of the defendant; and, to rebut the presumption of negligence arising from proof of those facts, it was incumbent on the defendant to prove that it had done all within its power to avoid a disaster of that kind. Stokes v. Saltonstall, 13 Pet. 181, 10 L.Ed. 115; Railroad Co. v. Pollard, 22 Wall. 341, 22 L.Ed. 877; Gleeson v. Railroad Co., 140 U.S. 435, 443, 11 S.Ct. 859, 35 L.Ed. 458; 2 Shear. & R. Neg. §§ 516, 517; 4 Elliott, R. R. p. 2566, § 1634; Ray, Neg. Imp. Duties, pp. 24, 25, § 5; 5 Am. & Eng. Enc. Law (2d Ed.) 627. Other cases to the same effect are very numerous, but they need not be cited in this opinion. Many of them are referred to in notes by the text writers just mentioned. Transit Co. v. Venable, 105 Tenn. 460, 58 S.W. 861, which is a case of collision, stands upon the same ground as this one, and hence is authority for the foregoing proposition. The plaintiff in the case of Gleeson v. Railroad Co., supra, was a clerk on a postal car being transported by the defendant. A portion of this train was derailed by a landslide, and in the disaster the plaintiff received the injuries sued for. In the course of the opinion, Mr. Justice Lamar, speaking for the court, said: "Since the decision in Stokes v. Saltonstall, 13 Pet. 181, 10 L.Ed. 115, and Railroad Co. v. Pollard, 22 Wall. 341, 22 L.Ed. 877, it has been settled law in this court that the happening of an injurious accident is, in passenger cases, prima facie evidence of negligence on the part of the carrier, and that, the passenger being himself in the exercise of due care, the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight. The rule announced in those cases has received general acceptance, and was followed at the present term in Coasting Co. v. Tolson, 139 U.S. 551, 11 S.Ct. 653, 35 L.Ed. 270; Gleeson v. Railroad Co., 140 U.S. 443, 11 S.Ct. 859, 35 L.Ed. 458." The present case is readily differentiated from that of Railroad v. Mitchell, 11 Heisk. 400, upon the fact that here the injury resulted from a derailment of the coach in which the plaintiff was riding, while there the injury in suit resulted from the falling of the plaintiff's intestate under the wheels of a moving car as he was attempting to alight therefrom. The one occurrence implies negligence on the part of the defendant; the other does not. This distinction was drawn in that case. 11 Heisk. 404, 405; also in Sommers v. Railroad Co., 7 Lea, 204, 205, Young v. Bransford, 12 Lea, 237, and Railroad Co. v. Stewart, 13 Lea, 437. The very nature of the fact that a passenger has been injured by derailment of a train or car indicates some omission of duty by the carrier, and creates a presumption of negligence on its part. 2 Shear. & R. Neg. § 516; 4 Elliott, R. R. p. 2566, § 1634; Hutch. Carr. §§ 800, 801; 5 Am. & Eng. Enc. Law (2d Ed.)

627. Judge Elliott, after defining the high degree of care to be exercised by passenger carriers, and referring to derailments, on the page cited uses this language, viz "As such so-called accidents do not ordinarily happen, however, unless the company fails to exercise such care, and as it is better able to explain how they happened, proof of the derailment of the car, and injury thereby caused to the passenger, generally raises a presumption that the company was negligent. But the presumption is not conclusive, for it may be rebutted by showing that the injury arose from an unavoidable accident, or an occurrence which could not have been prevented by the highest practicable degree of care and foresight." For the same reason, negligence on the part of the carrier is presumed from the fact that a passenger receives injuries in a collision. Transit Co. v. Venable, 105 Tenn. 460, 58 S.W. 861; Flaherty v. Railroad Co. (Minn.) 1 L. R. A. 681, note (s. c. 40 N.W. 160); 4 Elliott, R. R. § 1635; 5 Am. & Eng. Enc. Law (2d Ed.) 625, and cases cited. The rule is fully stated and elaborately illustrated in section 516 of 2 Shearman & Redfield on Negligence, as follows: "The mere fact of an injury suffered by a passenger while on his journey, without any evidence connecting the carrier with its cause, is not sufficient to raise a presumption of negligence on the part of the carrier. But proof of injury suffered from contact with anything for which the carrier was responsible, or which, as a general rule, he ought to have guarded against, or from the absence of anything which, as a general rule, he ought to have supplied, is sufficient to put him upon his defense. Having established so much, the plaintiff is entitled to recover, without proving affirmatively that the surrounding circumstances were of that character to which the general rule was meant to apply, and without showing by what particular acts of misconduct or negligence the injury was occasioned. Thus, for example, it is a general rule that a railroad company must maintain a good track and roadbed. Proof of a breach of the track, by which the cars were thrown off, is therefore sufficient evidence of negligence to put the company upon its defense in an action by a passenger. So, in general, a railroad company is bound to...