Louisville & N.R. Co. v. Howard

• Decision Date: 16 April 1891
• Citation: 19 S.W. 116,90 Tenn. 144
• Parties: Louisville & N. R. Co. v. Howard.
• Court: Tennessee Supreme Court

19 S.W. 116

90 Tenn. 144

Louisville & N. R. Co. v. Howard.

Supreme Court of Tennessee.

April 16, 1891

Error from circuit court, Henry county; W. H. Swiggart, Judge.

Action by Eliza Howard against the Louisville & Nashville Railroad Company.Judgment for plaintiff.Defendant brings error.Reversed.

LEA, J.

This suit was brought by Eliza Howard, widow of John Howard, for damages for the killing of her husband by the railroad company within the corporate limits of the town of Paris.The deceased had come to town and was returning home with his wagon, to which there were two mules hitched.Howard was approaching the track from the south, the railroad running east and west.The train was approaching from the east.The road crossing was near the west end of a cut of 100 yards in length.While crossing the railroad, the wagon of Howard was struck by the engine, and he was immediately killed.In approaching the railroad by the dirt road he came down a hill until within 15 or 20 yards of the track, where the road was level to and across the track.There was an embankment to the right of the dirt road coming down the hill that prevented a view of the approaching train, except that the smoke-stack of the engine could be seen by a man in a wagon a portion of the way.After the level ground was reached, a train could be seen for some distance to the east.The deceased was following a wagon just in front of his, and the driver of the front wagon crossed over and motioned his hand back to the deceased to stop, but he immediately followed, did not stop look, or listen, and was struck by the engine and killed.The engineer blew the whistle just before the train approached the corporation line, and the bell was rung from that point to the crossing.When the deceased was about to go upon the track the steam was shut off, the brakes applied, and the engineer reversed, or commenced to reverse, the engine, and did everything possible to prevent the accident.The engineer had blown the whistle one mile from the corporate limits, but there was no proof that afterwards it had been blown or the bell rung until the train reached the whistling-post at the corporation line.Upon these facts and evidence of damages the jury, under the charge of the court, returned a verdict against the plaintiff in error for $2,000, and the company appealed and have assigned errors.

The first question presented is as to the liability of the railroad.The proof does not show that it has complied with all the provisions of the law which has been enacted to prevent accidents on railroads.The statute provides "On approaching a city or town the bell or whistle shall be sounded when the train is at a distance of one mile, and at short intervals until it reaches its depot or station; and on leaving a town or city the bell or whistle shall be sounded when the train starts, and at intervals until it has left the corporate limits.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 the accident."^[1]"Every railroad company that fails to observe these precautions or cause them to be observed by its agents and servants shall be responsible for all damages to persons or property occasioned by or resulting from any accident or collision that may occur."^[2]"No railroad company that observes, or causes to be observed, these precautions shall be responsible for any damages done to persons or property on its road.The proof that it has observed said precautions shall be upon the company."^[3]

It is insisted by the company that, if the whistle was blown, and every precaution taken to stop the train, when the obstruction appeared upon the track, the company would not be liable for a failure to sound the whistle or ring the bell within one mile of the...