Middle Tennessee R. Co. v. McMillan

• Decision Date: 04 April 1916
• Citation: 184 S.W. 20,134 Tenn. 490
• Parties: MIDDLE TENNESSEE R. CO. v. MCMILLAN.
• Court: Tennessee Supreme Court

184 S.W. 20

134 Tenn. 490

MIDDLE TENNESSEE R. CO. v. MCMILLAN.

Supreme Court of Tennessee.

April 4, 1916

Certiorari to Court of Civil Appeals.

Action by Mrs. Maggie McMillan against the Middle Tennessee Railroad Company. From a judgment of the Court of Civil Appeals affirming a judgment for plaintiff, defendant brings certiorari. Reversed and remanded.

E. H. & C. P. Hatcher, of Columbia, and J. C. Eggleston and P. E Cox, both of Franklin, for plaintiff.

Henderson & Henderson and Faw & Crockett, all of Franklin, for defendant.

NEIL C.J.

This action was brought by the defendant in error in the circuit court of Williamson county to recover damages for the alleged negligent killing of her husband, with the result that a verdict was rendered in favor of defendant in error for $5,000 damages, on which judgment was duly rendered. On appeal the Court of Civil Appeals affirmed this judgment, and the case has reached us on the writ of certiorari.

The first question to be determined arises upon a construction of the declaration, in respect of whether it is a declaration under the common law, or under our statute prescribing certain precautions to be complied with by the railroad company.

The difference is important. When the right of action is based on the statute, the railway company is exonerated if it can show that before striking an object upon the road it complied with all the statutory precautions. But under this cause of action the burden of proof is on the railway company to show such compliance, and its failure to safely carry this burden results in absolute liability; moreover, contributory negligence does not bar the action, but only mitigates the damages. On the contrary, where the action is based on the common law, the burden of proof is on the injured party to show, not only the infliction of the injury, but also the negligence or wrongdoing of the railway company, and in such an action the proximate contributory negligence of the party injured bars recovery.

Upon the proper method of setting out in the declaration the statutory and common-law rights of action some confusion seems to exist in the minds of counsel, not only in the present case, but in other cases, arising out of a misconception of our authorities upon the subject, and particularly the case of Railroad v. Crews, 118 Tenn. 52, 99 S.W. 368.

It is recognized in our authorities that the two causes of action may exist in the same case, but it is required that they shall be presented in separate counts. The confusion referred to has arisen from the fact that some of the statutory precautions are identical with the requirements of the common law. We refer to those which require the railroad company to keep the engineer, fireman, or some other person upon the locomotive always upon the outlook ahead, and that, when any person, animal, or other obstruction appears upon the track the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident. These requirements having been repeatedly held in our cases to belong to the common law as well as to the statute, the difficulty is constantly presented to the minds of counsel as to whether a declaration is under the common law or under the statute. The court said in the Crews Case that, if the provisions above mentioned alone were referred to, there would not be enough to distinguish the action as a statutory one, that other common-law matters might be added and the whole declaration treated as under the common law, and that under such declaration no evidence of a violation of the other statutory precautions would be competent. It has been inferred from this statement of the principle, however, that although the declaration should go further and clearly show a case based on a violation of the statutory precautions, yet that the union of the common-law matters in the same declaration would reduce the whole pleading to a common-law basis. This a misconception of the Crews Case. When the declaration shows distinctly that there was a collision with an object or person on the road, and the injury occurred in that manner, this is sufficient to indicate an unmistakable purpose to base the action upon the statute. Whittaker v. Railroad, 132 Tenn. 576, 580, 581, 179 S.W. 140. The same is true if the action be based distinctly on subsections 2 or 3 of section 1574, Shan. Code (section 1166 of the Code of 1858). These provisions are not concurrent with the common law. and a declaration basing the right of action upon either one of these shows unmistakably a purpose to rest the action upon the statute. If there be also inserted in a declaration of this kind in a single count averments based upon the common law, the effect will be not to convert the whole declaration into a common-law pleading, but to lay it open to a demurrer for duplicity. It is shown in the Crews Case, notwithstanding our modified or code pleading, that the practice of using different counts for embodying different statements of the cause of action is still preserved, that duplicity is still reprobated, and that it is the duty of the court to see to it that the rules of pleading are substantially adhered to. Various sections of the Code are cited as authority for these provisions. 118 Tenn. 65, 99 S.W. 368.

To further illustrate these principles we set out in full the declaration in the present case, viz.:

"Plaintiff, Mrs. Maggie McMillan, as administratrix of the estate of Fred Augustus T. McMillan, deceased, sues the defendant the Middle Tennessee Railroad Company, a corporation, for $50,000, as damages, by reason of the following facts:

The defendant, the Middle Tennessee Railroad Company, heretofore, to wit, on the ______ day of _____, 1913, was and now is a railroad corporation chartered under the laws of the state of Tennessee for the carriage of passengers and freight for hire, owning and operating a line of railroad running from the town of Franklin, in Williamson county, to Leatherwood, in Hickman county, upon which defendant ran and operated locomotives, steam engines, and railway cars.

On the date aforesaid plaintiff's intestate, Fred Augustus T. McMillan, was traveling in a vehicle drawn by a horse along a public highway and a street of said town of Franklin known and designated as _____ street, across the railroad track of defendant company where said railroad track crosses said public highway and street, commonly known as the Boyd's Mill turnpike, and within the corporate limits of the town of Franklin, said town of Franklin being a municipal corporation; and while upon said crossing, where plaintiff's said intestate had the right to be, defendant company, its employés, agents, and servants, negligently, carelessly, wantonly, and recklessly ran upon and against said vehicle in which plaintiff's intestate was riding with said locomotive, engine, and cars, and upon and against the body, head, neck, arms, and legs of plaintiff's intestate, inflicting serious and fatal injuries, causing to plaintiff's intestate great pain and suffering, and mental anguish, fear, and fright, from the effects of which plaintiff's intestate, after lingering and suffering as aforesaid, died, to wit, on the _____ day _____, 1913.

Plaintiff avers that at the time and place when and where plaintiff's intestate appeared upon the railroad track of the defendant company, and when said engine and cars struck and injured and killed him as aforesaid, said engine and cars and plaintiff's intestate were within the corporate limits of the town of Franklin, a town of ______ inhabitants, and duly incorporated, and said engine and cars were passing through said corporate limits, and said engine and cars had left the depot or station of said defendant company in Franklin, and were passing in a westerly direction towards Leatherwood.

Plaintiff further avers that the agents, employés, and servants of defendant company who then and there had control and management of said engine and cars were guilty of carelessness, mismanagement, and gross negligence in the premises as follows:

(1) Although said engine and cars were within the corporate limits of said town of Franklin, and had left the depot or station of defendant company some minutes later than its schedule time, yet the employés, agents, and servants of defendant company carelessly and negligently failed to sound the bell or whistle on leaving said depot or station, and at intervals until said engine and cars reached said crossing, and until they had left the corporate limits.

(2) When plaintiff's intestate appeared upon the railroad track of defendant company at the crossing aforesaid, neither the engineer, fireman, nor any other person upon said locomotive was upon the lookout ahead; they did not sound the alarm whistle nor put down the brakes, and did not employ every possible means to stop the train and to prevent a collision.

(3) Plaintiff further avers that at the time of said collision said employés, agents, and servants of defendant company who then and there had the control and management of said locomotive, engine, and cars had inferior and defective engine and cars, with inferior and defective brakes, and other appliances, for the control of said locomotive engine and cars, and the track of defendant company at the time and place aforesaid was in defective condition, all of which was known to defendant company.

(4) Said crossing where said collision occurred was an exceedingly dangerous crossing, in that it was obscured by an embankment or cut made and constructed by defendant company and by trees and other obstructions which obstructed the view of said crossing, and in approaching said crossing the employés, agents, and...