Mitchell v. Nashville, C. & St. L. Ry. Co.
| Decision Date | 11 February 1898 |
| Court | Tennessee Supreme Court |
| Parties | MITCHELL v. NASHVILLE, C. & ST. L. RY. CO. |
Appeal from circuit court, Cheatham county; W. L. Grigsby, Judge.
Action by one Mitchell, by next friend, against the Nashville, Chattanooga & St. Louis Railway Company. Judgment for defendant. Plaintiff appealed. Reversed.
J. L. Watts, for appellant. Jacob Leech and J. B. De Bow, for appellee.
The plaintiff in error was in a wagon, driving a pair of mules over a bridge on the Charlotte pike near Nashville. This pike was a public thoroughfare much traveled, and vehicles of all kinds were constantly passing over the bridge. While plaintiff was so passing, an engine of the defendant, Nashville, Chattanooga & St. Louis Railway Company, passed under it; and while under it, or just as it was passing out from beneath, its whistle was loudly blown several times. This frightened the mules, which ran away, and plaintiff in error was thrown out of the wagon, and badly injured. Through a next friend (plaintiff being a minor) be brought this suit. Issue was joined, trial had, and, after all plaintiff's evidence was in, defendant demurred to it as insufficient in law to authorize recovery. In addition to what we have stated as facts of the case which were proven, plaintiff testified that he did not know the cause of the blowing, and made no effort to prove whether there was or not a legal or proper cause or excuse therefor. Upon the the demurrer, which admitted all the evidence, and all legitimate inferences arising thereon, the question was whether negligence could be inferred from such blowing of the whistle under a public bridge on a thickly traveled thoroughfare while plaintiff in error was driving over it. The court held it could not, and dismissed the suit. Plaintiff took a bill of exceptions, which is objected to in this court as insufficient. This is immaterial. The demurrer incorporates the evidence, and a bill of exceptions was not necessary. 2 Elliott, Gen. Prac. § 855. On the merits, defendant's counsel, in connection with an ingenious argument of much plausibility, cites as authority for the action of the court the case of Railway Co. v. Gaines, 104 Ind. 526, 4 N. E. 34, and 5 N. E. 746, and 54 Am. Rep. 334, in which it was held that it was not necessarily negligent in a railway company to sound a locomotive whistle at a point where the railroad crosses a highway by a bridge overhead, although the crossing is known to be one of extraordinary danger, and the sounding of the whistle causes a horse to run away. We have stated the principle of this case from its own syllabus as given in 54 Am. Rep. 334. It may admit of question if it is not too strong for a proper analysis of the case, which is a somewhat complicated one, and in which there were certain findings of fact, made by the court below, and certain omissions in finding, to which reference was made, and amid which findings and omissions the court with difficulty labored to a conclusion satisfactory to itself. But, assuming it to have squarely decided the question that such a blowing of an overhead engine would...
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