Memphis & Charleston R.R. Co. v. Smith

• Decision Date: 30 April 1872
• Citation: 56 Tenn. 860
• Parties: MEMPHIS & CHARLESTON RAILROAD CO. v. GUY SMITH.
• Court: Tennessee Supreme Court

56 Tenn. 860

MEMPHIS & CHARLESTON RAILROAD CO.

v.GUY SMITH.^a1

Supreme Court of Tennessee.

April Term, 1872.

FROM HARDEMAN.

Appeal in error from the judgment of the Circuit Court, July Term, 1871. THOMAS J. FLIPPIN, J.

JAMES FENTRESS, T. C. LOWE, FRANCIS FENTRESS for appellant.

WOOD & MCNEAL for appellee.

NICHOLSON, C. J., delivered the opinion of the Court.

Guy Smith sued the Memphis & Charleston Railroad Company, in the Circuit Court of Hardeman county, to recover damages for a mule run over and killed by one of the defendant's trains. The killing of the mule is not denied; but the question is, Whether, under the facts in proof, the defendant was guilty of such negligence as to make the Company responsible? The solution of the question must be controlled by the proper meaning of the Statutory Provisions on the subject, as applicable to the proof.

Section 1169 of the Code provides that “when a Railroad Company is sued for killing or injuring stock the burden of proof, that the accident was unavoidable, shall be upon the company.”

What the Legislature meant by an “ unavoidable accident,” is ascertained by referring to those sections of the Code which prescribe the precautionary duties required of railroads, and upon the observance of which they are exempt from liability for accidents.

By section 1166, on approaching a city or town, the bell or whistle is to be sounded at the distance of one mile, etc. Every railroad company shall keep an 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 and the brakes put down, and every possible means employed to stop the train and prevent the accident.

Section 1167. 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.

Section 1168. No railroad company that observes or causes to be observed these precautions, shall be responsible for any damages done to person or property on its road. The proof that it has observed said precautions shall be upon the company.

It follows that when the Legislature declares, that “where the railroad company is sued for killing or injuring stock, the burden of proof, that the accident was unavoidable, shall be upon the company.”

It is meant that if the company prove that, at the time of the accident, it was in the observance of the several statutory precautions, then the accident would be unavoidable and the company would not be responsible. But, if this proof be not made, the law makes the company responsible for all the damages resulting from the accident. The company, to exonerate itself, must show that, not only, the specified precautions were observed; but, in addition, that “every possible means was employed to stop the train and prevent the accident.” In resorting to the additional means, it was not intended that the company should use means which would, probably, endanger the lives or property of those on the train; but that, unless each and all of the statutory precautions were observed, it is no excuse, that an attempt to reverse the engine might have ditched the train.

It is manifest that, under the provisions of the Code, the question of liability on the part of the company is made to depend upon the fact, whether...