Nashville & Chattanooga R. R. Co. v. Anthony

• Decision Date: 31 December 1878
• Court: Tennessee Supreme Court
• Parties: Nashville & Chattanooga R. R. Co. v. Anthony.

69 Tenn. 516

Nashville & Chattanooga R. R. Co.

v.Anthony.

Supreme Court of Tennessee.

December Term, 1878.

FROM BEDFORD.

Appeal in error from the Circuit Court of Bedford County. W. H. WILLIAMSON, J.

EAST & FOGG for Railroad.

G. N. TILLMAN for Anthony.

J. W. JUDD, Sp. J., delivered the opinion of the Court.

Sufficient facts appear to show, that in the evening, between seven and eight o'clock, on the 24th of October, 1874, the horse of plaintiff below was struck and killed by an engine of the plaintiff in error, about one mile from the town of Wartrace. Much conflict appears in the proof as to the condition of the railroad where it was done, and as to whether the railroad employes were in pursuance of their duty, as required by the statute, at the time of this collision.

The jury having passed upon all this, and having found against the railroad, we must assume--all other questions aside--that their finding was a proper one, because it can not be said that there was no evidence to support this verdict; and indeed upon a careful reading of the evidence, we are satisfied that the weight of the evidence is in favor of the verdict.

But the charge of the court below is quite earnestly but respectfully attacked, and it therefore becomes necessary to state the facts upon which that part of the charge is based which contains the supposed error.

The train was moving north at the time of the collision, and as we gather from the proof upon which the jury based their finding, the animal of Anthony was killed at the south end of a trestle about one hundred feet long. South of this trestle about two hundred and seventy-five or three hundred yards, is another trestle, and between the two, there is a cut in the road, and the road is also fenced on both sides between these two trestles, running up to and joining the south end of the first mentioned trestle.

It appears that there were two other horses killed at the same time of Anthony's, belonging to other persons. The proof is ample to show, that for over two hundred yards of this space between the two trestles, as above described tracks of three horses were found going north in the same direction of the train, having all the appearance of being fresh made by horses running at full speed. Some of these tracks were on the road-bed between the rails, but most of them were on the side of the track and in what is called the ditch or water-way.

Among other things not complained of, the court instructed the jury that, “where animals, which have not reason like men, are running along a railroad track, or so near it as to make a collision probable by a sudden deflection in their course, occasioned by their fright or by fences or other obstacles, it will be the duty of the...