Louisville & Nashville R.R. Co. v. Burke

• Decision Date: 31 December 1868
• Citation: 46 Tenn. 45
• Court: Tennessee Supreme Court
• Parties: Louisville & Nashville Railroad Company v. Margaret Burke, Administratrix et als.

46 Tenn. 45

Louisville & Nashville Railroad Company

v.Margaret Burke, Administratrix et als.

Supreme Court of Tennessee.

December Term, 1868.

FROM DAVIDSON.

At the September Term, 1868, this cause was submitted to a jury, who rendered a verdict in favor of the plaintiff below, for $5,000, on which there was a judgment against the railroad; from which it has appealed to this Court. Judge EUGENE CARY, presiding.RUSSELL HOUSTON and JOHN L. SPURLOCK, for the plaintiff in error.

NEILL S. BROWN and JOHN C. GAUT, for the defendants in error.

HENBY G. SMITH, J., delivered the opinion of the Court.

In March, 1865, a train of cars, of the Nashville and Louisville Railroad Company, ran over and killed instantly, a man named Ulick Burke. The train was moving from the north at an easy speed, along a short curve, through a deep cut, near the southern end of the curve and cut, at a point visible to the approaching train, at a distance of about ____ yards. Burke was lying upon the track, motionless, and testimony was given tending to prove that he was drunk. Very great efforts were made by the engineer and hands upon the train, as soon as Burke was discovered, to stop the cars and prevent the accident. A conflict, or uncertainty of evidence, appears in the record, to the question, whether the engineer, fireman, or other person on the locomotive, was upon the lookout, and discovered Burke upon the track as soon as it was possible to see him, and whether the alarm whistle was forthwith sounded, and the brakes put down, and every possible means used to stop the train, and prevent the accident.

Burke was a common laborer, in the employment of the company, and had been sent by the “boss workman” on that section of the road, to proceed up the track, and with his pick to tighten the joints of the rails, until he reached Hendersonville, where he was to help repair a switch. He delayed and failed to go to Hendersonville, from which town, a short distance, the accident occurred.

The action is brought by Margaret Burke, the administratrix of the decedent, suing for the use of his widow and children. The declaration is in the statutory form, and alleges that the train of cars of the defendant, the railroad company, “wrongfully and by gross negligence, ran over and instantly killed Burke,” laying the damages at $10,000. The plea of not guilty, was put in by the defendant; and upon this issue the parties went to the jury, who found a verdict of $5,000 against the defendant, on which judgment was rendered; from which an appeal in error brings the whole case to the Court.

The errors assigned are to be found in the instructions of the Circuit Judge to the jury.

First, The instructions, though not very clear to the point, are to be understood as directing that damages are recoverable, suffered by the widow and children, by reason of the killing of Burke, the husband and father.

Second, The instructions, giving to the language the full breadth fairly to be understood from the words, directed the jury that the defendant, railroad company, under the clauses upon the subject enacted by the Code, is liable for all the damages occasioned by, or resulting from the collision or accident, unless it be shown by the proof, that the engineer, fireman, or other person, on the locomotive at the time, and on the lookout ahead, and discovered Burke as soon as it was possible to discover him; and, that as soon as discovered, the alarm whistle was sounded, the brakes put down, and every possible means used to stop the train, and prevent the collision or accident; and this, although it was negligence of Burke to be on the track in his condition, and, although the accident or collision was not caused by, or the result of the omission of the precautionary acts prescribed by the Code, and would have occurred though the precautionary acts had all been performed.

The court will do no more now, than indicate the conclusions adjudged upon the case. An opinion in full will...