Memphis & C.R. Co. v. Scott

• Decision Date: 09 April 1889
• Parties: MEMPHIS & C. R. CO. v. SCOTT.
• Court: Tennessee Supreme Court

11 S.W. 317

87 Tenn. 494

MEMPHIS & C. R. CO. v. SCOTT.

Supreme Court of Tennessee.

April 9, 1889

Appeal from circuit court, Shelby county; L. H. ESTES, Judge.

Poston & Poston, for appellant.

L. W Humes, for appellee.

FOLKES J.

This was an action by Scott to recover from the railroad company damages for the negligent killing of a mule by a train running upon the same, while on its track. There were two trials. The first resulted in a verdict for the railroad. A new trial was granted upon motion of plaintiff, to which action of the court a bill of exceptions was taken, and duly filed. At the second trial there was verdict and judgment for the plaintiff in the sum of $135. New trial being refused the railroad company has appealed in error.

The first error assigned is to the action of the court in granting new trial. The record shows that such new trial was granted because of error in the charge. It is insisted that there was no error in the charge, and that the new trial was improperly granted, and that the railroad company is therefore entitled to have here a judgment in its favor on the first verdict. The correct practice under the act of 1875, c. 124, carried into the Mill. & V. Code, §§ 3836, 3837, authorizing a bill of exceptions to the action of the court in granting a new trial, is when the case finally comes before this court on appeal from the final judgment, at the succeeding trial, to first examine the record of the first trial, so far as it concerns the action of the court in granting the new trial. If the trial judge has committed no error in allowing such new trial, (and very much is necessarily left to his discretion, especially where he is dissatisfied with the verdict,) this court will refuse to disturb his action thereon, and will pass to the consideration of the record of the second trial. If, on the other hand, the trial judge has committed manifest error in setting aside the first verdict, this court will enter judgment on such verdict, without looking to the record of the succeeding trial or trials. Applying this rule, let us see what the record of the first trial discloses. It shows a case where a mule appeared upon the track some 15 or 20 yards in front of a passenger train, the latter running at the rate of 30 miles an hour. At this rate of speed, according to the testimony of the engineer, it would be impossible to stop the train under 200 yards. The engineer immediately put on the air-brakes, and reversed the engine, and by the time he had done this the animal was struck and killed. The engineer further testified that he was so close to the mule when she came upon the track that he had no time to do more than he did do to stop the train; that for this reason he did not blow the whistle nor ring the bell; that what he did was the best way to stay the train; and that the only effect the blowing of the whistle could have had was that it might have frightened the mule from the track. This was all the evidence concerning the accident. The court charged the jury that "if the engineer was on the lookout ahead, and as soon as the mule appeared upon the track the engineer put on the brakes, and reversed the engine, and that by reason of the close proximity of the mule to the train the engineer was unable to comply with any other of the statutory precautions or apply any other means to stop the train and prevent the accident, and that at the time of the accident the train was supplied with proper head-light, (the accident having occurred in the night-time,) and all necessary and proper equipment for the running and stopping of the train, then you will find for the defendant." This was error, for which the circuit judge rightfully granted a new trial.

It was manifest, from the uncontradicted --indeed, from the only--proof in the case that the means employed to stop the train, while the best to accomplish that end, doubtless were not the best to have prevented the accident, under the circumstances. According to the engineer, it was impossible to have stopped the train at the rate of speed it was going within the short distance that intervened, so that, where he did not have time to observe each of the statutory requirements, ordinary diligence demanded that he should have used those likely to prevent the accident. The blowing of the whistle, as he admits, might have frightened the animal from the track, and should therefore have been resorted to. After doing this, he should have done the other things prescribed, if he had the time. Where he can do so, he is required to use each and every precaution named in the statute, as also "every possible means to stop the train, and prevent the accident." Under...