HOWELL, Judge.
This suit was brought by Will C. Cantrell and by Frank Cantrell, a minor by his next friend Steve Taylor, for damages for the death of their wife and mother respectively, a colored woman named Helen Otelia Cantrell, about twenty-three years of age, who was killed on June 22, 1940, by a freight train of the defendant Louisville & Nashville Railroad Company on the right of way of the railroad at a point near Pilot Knob, Tennessee.
The declaration alleged that the servants and agents of the defendant negligently and wrongfully ran the locomotive and train over Otelia Cantrell and killed her; that the defendant, and its agents and servants, failed to ring the bell or sound the whistle or keep a lookout ahead and when the deceased Otelia Cantrell appeared on the track they failed to sound the alarm whistle or any other whistle and failed to apply the brakes or use other means to stop the train and prevent the accident.
The defendant first interposed two pleas, one of not guilty and the other a plea of accord and satisfaction. The plaintiffs demurred to the second plea and this demurrer was sustained by the trial Judge. The defendant then filed additional pleas in which it denied that the injuries were caused by its negligence and that it had failed to perform its
statutory duties as alleged in the declaration. It pleaded further and averred that the proximate cause of the accident was the negligence of the deceased in suddenly placing her person on the defendant's track in front of the train and that her injuries and death resulted from her own wilful conduct in intentionally and suddenly placing her person upon its track immediately in front of its train.
At the close of all the testimony the defendant moved the Court for a directed verdict in its favor and its motion was overruled.
The case was tried by the Circuit Judge and a jury on June 11, 1941, and resulted in a verdict for the plaintiffs for $5,000.
Upon the motion for a new trial the Circuit Judge overruled the motion and suggested a remittitur of $1,000. This was accepted under protest and a judgment was entered for $4,000 against the defendant.
The defendant has properly perfected its appeal in error to this Court and has assigned errors as follows:
"1. The Court erred in sustaining the demurrer of the plaintiffs below to the plea of accord and satisfaction filed by the defendant below, and in excluding the defense of accord and satisfaction. (See Motion for New Trial, Tr. 117, Action of Court on Demurrer, Tr. 8.)
"2. There is no evidence to support the verdict of the jury. (See Motion for New Trial, Tr. 117.)
"3. The Court erred in overruling the motion of the defendant below made at the conclusion of all of the evidence in the case to peremptorily instruct the jury to return a verdict in favor of the defendant below and in not directing a verdict for said defendant. (Motion for New Trial, Tr. 117.)
"4. The verdict of the jury is so excessive as to evince passion, prejudice or caprice upon the part of the jury. (See Motion for New Trial, Tr. 118.)
"5. The Court erred in charging the jury as follows: `Now, in a case like this, where a violation of this particular statute is relied upon and the defendant is charged with a violation of it as the proximate cause of the death of the deceased, the burden of proof is upon the defendant and they must show, by a preponderance of the evidence that they complied with statute.' (See Motion for New Trial, Tr. 118.)
"6. The Court erred in charging the jury in accordance with plaintiffs' Special Request No. 3, as follows: `Plaintiffs' Special Request No. 3. The Railroad Company insists that the deceased put herself on the railroad track with suicidal intent. Plaintiff denies that this is true. However, I charge you that even if the deceased did go upon the railroad track with suicidal intent, it was nevertheless the duty of the Railroad, as soon as she appeared upon the track to at once observe all statutory precautions toward her as it would have to observe toward any other person.' (See Motion for New Trial, Tr. 118)".
The first assignment of error questions the action of the trial Court in sustaining plaintiffs' demurrer to the pleas of accord and satisfaction. After the death of Otelia Cantrell, Clarence Malone, a resident of Sumner County, Tennessee, qualified as administrator upon her estate and on August 7, 1940, the defendant company paid him as such administrator $260.65 and this amount was accepted by him "in full compromise, settlement, discharge and satisfaction of all claims, damages, or causes of action of every character whatsoever, which said Administrator or the estate of Helen O. Cantrell had as a result of the injuries to and loss of life, and damage to the property of said Helen O. Cantrell, deceased, who was fatally injured at or near Pilot Knob, Tennessee, on the 22nd day of June, 1940."
Section 8236 of the Code of Tennessee is as follows: "Right of action for wrongful injuries resulting in death or for wrongful killing does not abate, but passes to whom. — The right of action which a person, who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his widow, and, in case there is no widow, to his children or to his next of kin; or to his personal representative, for the benefit of his widow or next of kin, in either case free from the claims of creditors."
Section 8239 is as follows: "Suit in name of husband or administrator of deceased wife. — A suit for the wrongful killing of the wife may be brought in the name of the husband for the benefit of himself and the children of the wife, or in the name of administrator of the deceased wife, or in the name of the next of kin of the wife."
Section 8241 of the Code is as follows: "Damages for wrongful death of wife and mother go to husband and children; husband's share goes to his next of kin upon his death. — The damages which may be recovered for the wrongful killing of any married woman shall go to the surviving husband and children of the deceased equally, the husband taking a child's share, and if any child be dead leaving descendants, such descendants shall take the deceased child's part. If there are no children nor descendants of children, then the damages shall go exclusively to the husband. If the husband shall die after the cause of action accrued and before recovery is collected, then his share shall go to his next of kin."
In the case of Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246, a settlement made with an administrator was set aside and the legal father of a child permitted to intervene, and special Justice Alan M. Prewitt in his opinion on pages 642 and 643 of 177 Tenn., on page 248 of 152 S.W.2d, said:
"By the express provisions of Code, section 8236, it is provided that the right of action shall not abate but shall pass to the widow, and, in case there is no widow, to the children or the next of kin. In other words, where the former act provided that the right of action should pass to the widow or children, the Code provisions extend the reservation to the next of kin in the same category as the children. The reservation in favor of the next of kin is prior in order of enumeration to the reservation in favor of the personal representative for the benefit of the widow or next of kin. It is a clear expression by the legislature that the reservation should be extended to the next of kin in the same manner as the previous reservation including the widow, and we know of no reason why the provision should not be fully recognized by the courts.
"Under the law the father had the exclusive right to compromise the claim, and the attempt at compromise with the administrator was inoperative against him. * * *
"In our view of the case, we hold that John C. White had the right to institute suit in his own name as next of kin of the deceased child, or he could have instituted suit in the name of the administrator for his use and benefit. We are further of the opinion that under the facts of this case it was proper for the court to permit him to intervene in this suit and become a party plaintiff therein, and we are also of the opinion that the court properly granted a new trial under the showing in this cause."
In the case of Spitzer v. Knoxville Iron Co., 133 Tenn. 217, on page 220, 180 S.W. 163, on page 164, it is said: "We feel constrained to hold that the widow had the legal right to make the compromise. This seems to us a necessary consequence of our prior decisions construing the statutes. The substance of these decisions is that the widow's right of action is prior and superior to that of the administrator; that the latter cannot sue until she waives her right, albeit in addition to an express waiver she may effect a waiver by merely permitting his suit to stand without objection on her part; that she may compromise the demand at any time before the administrator, pursuant to her waiver, has brought a suit, but not afterwards; that likewise she may compromise the claim before suit brought, or after a suit brought by herself as widow at any time, regardless of...
