Little Rock & M. Ry. Co. v. Wilson

• Decision Date: 21 May 1891
• Citation: 16 S.W. 613,90 Tenn. 271
• Parties: LITTLE ROCK & M. R. CO. v. WILSON.
• Court: Tennessee Supreme Court

16 S.W. 613

90 Tenn. 271

LITTLE ROCK & M. R. CO. v. WILSON.

Supreme Court of Tennessee.

May 21, 1891

Error from circuit court, Shelby county.

W. G Weatherford, for plaintiff in error.

J. H Watkins, for defendant in error.

SNODGRASS J.

The defendant in error recovered judgment against the Little Rock & Memphis Railroad Company for $1,500, damages for injuries sustained while drunk and asleep on its track in Fulton street, Memphis, Tenn. The accident occurred at a point about 30 yards north of Market street, during the night of October 10, 1889, and while the employes of the company were, by means of an engine in the rear of a train of nine cars pushing the train into the company's yard south of Market street. The front car of this train ran over Wilson, causing the loss of one arm and partial loss of the other. By consent of parties, a jury was waived, and the case tried by Hon. W D. BEARD, sitting as special judge in place of Judge ESTES, who was incompetent. His find ing of law and facts and judgment thereon were reduced to writing, and so given on demand of parties. They are, in substance and effect, that the railroad company was guilty of negligence, which proximately caused the injury, in failing to keep a lookout at some place on the front car of the train, or on the ground, either in front of the car, or on the side and so near the road that he could command a view of the road-bed in front of the moving train that a lookout so placed could have discovered Wilson in time to have prevented the accident, notwithstanding Wilson's negligence in being there, and so the company was responsible for failure to take this precaution, which he held evidenced a lack of reasonable care and prudence. The plaintiff's negligence was considered in mitigation of damages, and recovery only to amount stated was allowed. The railroad company appealed, and assigned errors.

It is not necessary to state them in detail, because the determination of one question settles them all, so far as they relate to the judgment on the special finding of facts. But there is a preliminary one proper to be noticed. It is that the court erred in sustaining a demurrer to the second plea, because the declaration showed the accident within the limits of the city of Memphis, and therefore the statute to prevent accidents on railroads (Mill. & V. Code, § 1298) does not apply. This is an erroneous assumption. We have held in a case at this term the contrary of this proposition. We repeat the holding here, but content ourselves by a reference to that case, without repetition of its argument. Katzenberger v. Lawo, 90 Tenn. 235, 16 S.W. 611.

The material question, as indicated, as determining all others involved in the assignment of errors, is whether the statute applies to a train in which the engine is in the rear; the argument upon this being that the statute provides that the lookout shall be upon the locomotive ahead, and only contemplates the placing of a lookout ahead when the locomotive is leading, instead of following, the train; and this appears to have been the view of the circuit judge, because he did not predicate the liability of the defendant upon the failure to observe the statutory precautions, but upon the non-observance of common-law duty to exercise reasonable care and prudence.

There is, of course, a manifest difference in the situation, as respects the view taken of the law to be applied. If the railroad company was liable for failure to observe statutory precautions at all, the burden of proof is on it to show that it did observe them, (Code, § 1300,) and, if it fails to show this, it is liable, (section 1299,) notwithstanding the negligence of the injured party, which can only go in mitigation. If, however, it was not a case in which the statutory precautions were required to be observed because of the situation or order of arrangement of the train, then defendant's negligence would have to be shown, and plaintiff's might be considered in bar of the action, as at common law,--about the only difference which our statute occasions,--for we have repeatedly held that its precautions suggested were only those indicated by the wisdom and prudent requirement of...