Katzenberger v. Lawo

• Decision Date: 07 May 1891
• Citation: 16 S.W. 611,90 Tenn. 235
• Parties: KATZENBERGER v. LAWO.
• Court: Tennessee Supreme Court

16 S.W. 611

90 Tenn. 235

KATZENBERGER v. LAWO.

Supreme Court of Tennessee.

May 7, 1891

Error from circuit court, Shelby county; L. H. ESTES, Judge.

Action for personal injuries by Lawo against William Katzenberger receiver. From a verdict and judgment for plaintiff defendant appeals.

Gantt & Patterson, for plaintiff in error.

T. W. & R. G. Brown and Bolton Smith, for defendant in error.

LURTON J.

By a collision on one of the streets of Memphis, between a wagon driven by Lawo and a dummy train of street-cars, he sustained such bodily injuries as have resulted in judgment for $3,000 against plaintiff in error, who, as receiver, was operating the railway at the time. The circuit judge charged the jury that the statutory percautions required to be observed by railroads, and contained in subsection 4, § 1298, Code Tenn (Mill. & V.) applied to the movement of all railway trains upon the streets of Memphis, and that a dummy line was a "railroad" within the meaning of this provision. Each of these propositions has been assigned as error. Counsel have urged very forcibly that when, by legislative and municipal consent, a railroad has been laid longitudinally upon the streets of a city, it is not practicable to observe the requirements of the statute in reference to stopping the train whenever any person, animal, or other obstruction appears on the road; that, under such circumstances, a railway is lawfully upon the street; and that to construe the statute as applicable when thus upon the streets will prevent any movement of trains, inasmuch as at all times persons, animals, or other obstructions will be upon the road, and within observation of the lookout upon the locomotive. The statute was enacted for the purpose of preventing accidents. It prescribes precautions which, so far as they relate to the duty of watching the track, and the duty of avoiding collision with persons or animals on the track, are identical with the common-law duty of diligence. Railroad Co. v. Pratt, 85 Tenn. 13, 1 S.W. 618. If these precautions are observed, the statute relieves the company of responsibility. If it fails to observe them, the statute imposes liability. All other questions out of the way, the rule would be the same, regardless of the statute. With respect to the burden of proof, and the effect of contributory negligence, the statute changes the rule of the common law. If there be any strength in this argument, it would practically repeal the statute, for the same difficulty in literally observing it will be found to exist between country stations, the track in the day-time being very generally used as a walkway. Practically, it is unnecessary to stop the train when an object appears on the track, save in a very few instances. The statute only requires it when necessary, and experience demonstrates that this necessity seldom arises. The track is generally cleared by signals, and no liability arises from failure to stop, unless such failure has resulted in an accident. What the common law would impose as ordinary care, when necessary to avoid injury to the property of another, or an accident to a person upon the track, is not so difficult of accomplishment, when embodied in legislation, as to authorize a construction suspending it when the necessity for its observance is most necessary.

When a railroad is longitudinally upon the street of a city, the danger of accidents is obviously increased. Under such circumstances, there should be a corresponding increase of diligence. The railway is upon the street of its own volition. The...