Mobile & O. R. Co. v. Bogle

• Decision Date: 15 March 1898
• Parties: MOBILE & O. R. CO. v. BOGLE.
• Court: Tennessee Supreme Court

46 S.W. 760

101 Tenn. 40

MOBILE & O. R. CO. v. BOGLE.

Supreme Court of Tennessee.

March 15, 1898

Error to circuit court, Gibson county; John R. Bond, Judge.

Action by T. M. Bogle against the Mobile & Ohio Railroad Company. From a judgment, defendant brings error. Reversed.

W. S Coulter and Deason & Rankin, for plaintiff in error.

McCorry & Bond and R. P. Raines, for defendant in error.

BEARD J.

This action was brought for personal injuries sustained by defendant in error, resulting, as is alleged, from the negligence of the plaintiff in error. The facts, so far as it is necessary to state them, are that Bogle shipped by this railroad a car load of stock from Kenton, in this state, to East St. Louis. Attached to the train of which this car formed a part was a caboose for the use of the conductor and of such parties who, as did the defendant in error accompanied their stock, to look after and take care of them. At a station in Illinois, this train took a siding, in order to open up the main line for the regular passenger train going south. Immediately upon its stoppage, Bogle left the caboose, and went forward to the car containing his stock, to give them such attention as was necessary. While so engaged the passenger train passed; and at once the stock train began to move backward to the main track, in order to resume its journey, and in a few minutes had straightened out on this line. Just as the engine cleared the switch, and was in the act of moving forward, Bogle reached its side, and believing that, if he waited until the caboose reached the point where he then stood, the train would have attained a speed which would make it dangerous for him to attempt to board it, and unwilling to be left, he ascended the engine. When he reached the cab where the engineer stood at his post of duty, he explained to him why he had come upon the engine; and, he says, in reply the engineer told him to get off, as the train would be stopped at the water tank just above that point, and he could then get in the caboose. Regarding this as a positive command, he instantly obeyed, and in descending, to use his own words, he "didn't give the right step or something of that kind," and he fell to the ground, breaking one of the bones of his wrist. At the time of his descent, the train was slightly in motion, and defendant in error supposed he could safely dismount. The proof indicates the train did go but a little distance beyond the point of the accident, when the engine was stopped at the water tank, and the caboose was located near the place where the injury occurred.

This is a sufficient statement of facts to raise the assignment of error mainly relied on for a reversal of this case. Upon these facts, there was a direct issue as to the measure of duty which the railroad owed the defendant in error. The latter insisted that, under the circumstances, he was warranted in getting on the engine, and, while there, the road was bound to exercise the same...