Louisville & N.R. Co. v. Pitt

• Decision Date: 07 January 1892
• Citation: 18 S.W. 118,91 Tenn. 86
• Parties: Louisville & N. R. Co. v. Pitt.
• Court: Tennessee Supreme Court

18 S.W. 118

91 Tenn. 86

Louisville & N. R. Co. v. Pitt.

Supreme Court of Tennessee.

January 7, 1892

Appeal from circuit court, Montgomery county; A. H. Munford, Judge.

Action by G. L. Pitt, administrator, against the Louisville & Nashville Railroad Company, to recover damage for the death of Newton Sullivan. Plaintiff had judgment, and defendant appeals. Reversed.

Turner C.J., and Lea, J., dissenting.

Caldwell J.

This is an action by G. L. Pitt, administrator, against the Louisville & Nashville Railroad Company, for having negligently and wrongfully caused the death of his intestate Newton Sullivan, by requiring him to alight from a moving train. The defendant pleaded "not guilty." On the issue so made the case was tried, resulting in verdict and judgment for $4,000 in favor of the plaintiff. Motions for new trial and in arrest of judgment having been successively made and overruled, the defendant appealed in error. The deceased was an employe of the defendant, engaged with numerous other hands in "raising" the road-bed near the Tennessee river, at a point between Danville and Faxon. On the day of the accident, he and others, in charge of the defendant's supervisor, took passage on a regular passenger train to Danville, where it was supposed they would find "the gravel train," which would carry them thence to their work. On reaching Danville it was ascertained that "the gravel train" was not there, but at Faxon, the next station south, whereupon a conference was held between the supervisor and the conductor of the passenger train about the further passage of the hands on the latter's train. After this conference the supervisor made some statement to the hands, and they remained aboard until the train reached the place at which they were to perform their labor. Here they disembarked while the train was moving slowly. In alighting, Newton Sullivan, plaintiff's intestate, fell, was thrown under the wheels, and was so injured that he died in less than an hour. The supervisor was not present at this time, having gotten off the train, as he told the hands he would, about one mile back. The principal controversy in the court below was whether the accident was the result of Sullivan's indiscretion or of his obedience to an order of the supervisor. Some of the witnesses testified that the supervisor, after his conference with the conductor, entered the coach, and said to the hands "Boys, the train will slow up at the work, and you will get off and go to work where Mr. Hussey is at work;" while others testified that the supervisor's order was that the hands should get off where Hussey was at work if the train should be going slow enough; if not, that they should go on to Faxon, and return on the gravel train. The latter was the defendant's theory of the facts, and upon that theory defendant's counsel requested the court to instruct the jury as follows: "If you shall find from the proof that the supervisor said to the hands, 'if the train is going slow enough, get off where Hussey is at work; if not, go on over to Faxon, and come back on the gravel train,' and the hands so spoken to were accustomed to getting off and on moving trains, and a discretion was left the hands whether they would jump off or not, then the plaintiff cannot recover on account of the supervisor's order or direction." Clearly this was a proper instruction upon a material question in the case, and it should have been given, unless embraced in the general charge. On this point the court told the jury that, "if the instructions left it to the discretion of the deceased and other hands whether they should get off or not, and the deceased negligently exercised this discretion in attempting to get off at the time he did, or in act of getting off, and the negligence of the deceased was the direct cause of his injury, then he cannot recover, and you should so find." This direction of the court manifestly does not embrace the proposition contained in the instruction requested. Instead of telling the jury, as requested, that defendant would not be liable if the supervisor's order left the deceased to decide for himself whether or not he would alight at the particular time and place, the court told them the plaintiff could not recover if the order allowed the deceased such discretion, and his negligent exercise of that discretion directly caused his injury. The instruction requested exonerated the defendant if it should be found that the deceased was left to act upon his own discretion; while the charge given made non-liability depend, not upon the allowance of that discretion, but upon the negligent exercise of it. The charge virtually put the character of the supervisor's order out of the case, by making non-liability depend upon negligence on the part of the deceased; for, of course, the plaintiff could have no recovery if the negligence of deceased was the direct cause of his death. In such case it would be entirely immaterial whether the order was discretionary or mandatory. It was error, for which a new trial must be awarded, to refuse the instruction requested.

The motion in arrest of judgment was based upon the failure of plaintiff, who sued as administrator, to aver that his intestate left a widow, child, or next of kin to take the benefit of the recovery sought. Pending this motion, plaintiff was allowed to amend his declaration by adding an averment that the deceased left a widow, for whose use and benefit the suit was brought, and then the motion was overruled. This action of the court is assigned as error. If the averment was necessary to plaintiff's right to maintain his action, the amendment came too late, and should not have been allowed. Only defects "in matters of form may be rectified and amended" after judgment. Mill. & V. Code, § 3583; Cannon v. Phillips, 2 Sneed, 186. Was the added averment a necessary one, without which the plaintiff could not legally have a recovery? The right to maintain an action against one person for wrongfully causing the death of another is purely statutory, given for the benefit of the widow, children, or next of kin

of the deceased. The suit may be brought by the beneficiaries in their own right, or by the personal representative for their use and benefit. Mill. & V. Code, §§3130-3132; Webb v. Railway Co., 88 Tenn. 119, 12 S.W. 428; Greenlee v. Railroad, 5 Lea, 418; Trafford v. Express Co., 8 Lea, 100. If there be no widow, child, or next of kin, the suit cannot be maintained at all; for, in such event, the case is without the statute, and the right of action dies with the injured person, as at the common law. In a recent case, so deciding, this court said: "It is only where there is a widow, child, or next of kin to receive the benefit that the rule of the common law is abrogated. Where there are no such kindred to become beneficiaries, the statute does not apply; and the right of action abates now, as formerly, with the death of the injured person." Railway Co. v. Lilly, 90 Tenn. 563, 18 S.W. 243. The first...