Louisville & Nashville R.R. Co. v. Connor

• Decision Date: 31 December 1871
• Citation: 56 Tenn. 19
• Parties: LOUISVILLE AND NASHVILLE RAILROAD COMPANY v. MARY CONNOR, Adm'x.
• Court: Tennessee Supreme Court

56 Tenn. 19

LOUISVILLE AND NASHVILLE RAILROAD COMPANY

v.MARY CONNOR, Adm'x.^a1

Supreme Court of Tennessee.

December Term, 1871.

FROM DAVIDSON.

Appeal in error from the judgment of the Circuit Court, September Term, 1870. NATHANIEL BAXTER, J.

GUILD & SMITH for appellant.

W. G. BRIEN, JNO. C. GAUT, for appellee.

MCFARLAND, J., delivered the opinion of the Court.

This is an action under the statute, by the administratrix of Annie Connor, against the L. & N. R. R. Co., to recover damages for injuries causing the death of said Annie, she being at the time an infant of about eighteen months. There was a verdict for $3,000. A new trial was refused, and judgment entered, from which the defendant has appealed in error.

The fact that the child was killed by the engine and cars of the company is admitted, and it is not seriously denied that under our statute the action may be maintained by the personal representative of an infant: (See Bream v. Brown, 5 Col. 169.) It is argued that the Court erred in placing the burthen on the Railroad Company of disproving negligence. It is not denied that by the express provisions of our statute, the burthen is upon the company to prove that it had complied with the requirements of sections 1166 and following of the Code, for the prevention of accidents. But it is argued that the effect of the Judge's charge was not only to require this, but also to require the company to disprove any other negligence; that is, to show that its road, cars, engines, etc., were in good order, according to the present state of the art, whereas, it is argued, that as to these matters the statute has not thrown the burthen upon the defendant, but the burthen is upon the plaintiff in the cause to show that there was negligence. To this we answer, that at common law, the killing being proved, the onus is thrown upon the defendant to show that it was guilty of no negligence, and that the accident was unavoidable. The statute in this respect simply affirms a common law principle. This is distinctly held in the case of Horne v. the Memphis and Ohio R. R. Co., 1 Col., 77. In order for the company to show that it has complied with that part of the statute requiring the whistle to be sounded, the brakes to be put down, and every possible means employed to stop the train and prevent an accident when any person appears upon the track, it must of necessity show that it had the whistle, the brakes, and the means to be thus employed. The jury were told that the road, its machinery, and equipments, should be according to the present state of the art. And it is manifest that the Judge intended, and the jury must have so understood him, that the company were not required to employ all possible improvements, but a reasonable conformity in these respects was required.

Next, it is urged that the charge of the Court makes the duty of the engineer and other employees to the person on the track paramount to their duty to the passengers upon the train.

The Court told the jury that “it is the duty of all who are engaged in running the train, in whatever department they may be employed, to give the entire energies of their bodies and minds to bring into requisition all means at their command to stop the train as soon as possible and prevent the accident.” It is in proof that there was only one brakeman to two brakes. There was proof indicating that if there had been a brakeman to each brake, they might have stopped the train sooner; but the conducter proved that in his opinion this could not have been done without danger to the passengers; and it was also proved that it was not customary to have more than one brakeman to the brakes on two cars. It can not be maintained that the charge led the jury to believe that the company were liable alone for not having a brakeman to each brake, for they were expressly told that if the proof showed that one brakeman to two cars is sufficient for all ordinary purposes, then the company would not be liable for not having one to each car. The charge of the Court is not stronger than the letter of the statute. It is, “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...