Mobile & O.R. Co. v. House

• Decision Date: 18 April 1896
• Parties: MOBILE & O. R. CO. v. HOUSE.
• Court: Tennessee Supreme Court

35 S.W. 561

96 Tenn. 552

MOBILE & O. R. CO. v. HOUSE.

Supreme Court of Tennessee.

April 18, 1896

Appeal from circuit court, Gibson county; John R. Bond, Judge.

Action by J. A. House against the Mobile & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

McCorry & Bond and R. P. Raines, for appellant.

W. S Coulter, for appellee.

CALDWELL J.

J. A House, as plaintiff in this action, obtained a verdict and judgment against the Mobile & Ohio Railroad Company for $50 the value of a graded Jersey cow killed by one of its trains. The defendant has appealed in error. The animal in question was stricken and killed while upon the main track of the company's road in the station grounds, and only a few feet from the depot buildings, in Dyer, Tenn., by a through freight train, moving at a high rate of speed, with no purpose or intention of stopping at the station, and without the observance of any of the requirements of subsection 4, § 1298, Mill. & V. Code. The instruction of the trial judge to the jury does not appear in the record. In lieu thereof, and in relation thereto, the bill of exceptions contains this statement, namely: "The charge of the court was under the precautionary status only, relating to the prevention of accidents on railroads, and was unexceptionable within itself; but the defendant insists that the statutes do not apply in this case." Obviously the "statutes" referred to are the following: "Every railroad company shall keep the 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, the brakes put down, and every possible means employed to stop the train and prevent an accident." Mill. & V. Code, § 1298, subsec. 4. "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." Id. § 1299. "No railroad company that observes, or causes to be observed, these precautions, shall be responsible for any damages done to persons or property on its road. The proof that it has observed said precautions shall be upon the company." Id. § 1300. Should these provisions have been given in charge to the jury in this case? Are the precautions prescribed in the subsection first quoted applicable to a through train running upon the main track in and through the company's station or depot grounds? Though the language is very broad and general, those precautions have been adjudged, several times, to be inapplicable in certain peculiar and adverse conditions. They have been held not to apply to the rear portion of a train broken in two by accident (Patton v. Railway Co., 89 Tenn. 370, 15 S.W. 919); nor to cases where the obstructing object appeared upon the road so suddenly, and so near the locomotive, as to render their observance impossible (Railroad Co. v. Scales, 2 Lea, 688; Railroad Co. v. Swaney, 5 Lea, 119; Railroad v. Scott, 87 Tenn. 494, 11 S.W. 317; Railway Co. v. Foster, 88 Tenn. 680, 13 S.W. 694, and 14 S.W. 428); nor to a train, or part of a train, while engaged in switching operations in the yard and station or depot grounds of the railway company ( Railroad v. Pugh, 95 Tenn. 419, 32 S.W. 311; Cox v. Railroad Co., 2 Leg. Rep. 168). These three exceptions arise by construction, and without reference to subsequent legislation on the same subject. It must be assumed that the jury, in the present case, were properly instructed in relation to such exceptions, so far as appropriate to the facts disclosed in the testimony. This assumption is made-First, because the bill of exceptions, as has been seen, recites that the charge given was upon the statutes in question, and was "unexceptionable within itself"; and, secondly, because, this court, in the absence of the charge, will presume that it was all that it should have been under the law. Railway Co. v. Foster, 88 Tenn. 671, 13 S.W. 694, and 14 S.W. 428; Insurance Co. v. Sturges, 12 Heisk. 339; Lane v. Keith, 2 Baxt. 189. The defendant, though failing to observe any of those precautions, did not bring itself within any one of the exceptions mentioned. There was no insistence on its part that the cow was killed by the detached portion of a train broken in two, nor by the movement of a train, or part of a train, while engaged in switching operations. The accident occurred in the station grounds of the company, but the collision was with a through train, upon the main track, in...