Nashville & Chattanooga R.R. Co. v. David

• Decision Date: 30 September 1871
• Court: Tennessee Supreme Court
• Parties: Nashville & Chattanooga Railroad Co. v. L. David.

53 Tenn. 261

Nashville & Chattanooga Railroad Co.

v.L. David.

Supreme Court of Tennessee.

September Term, 1871.

FROM HAMILTON.

Appeal in error from the judgment of the Law Court of Chattanooga, June Term, 1870. W. L. ADAMS, J.

No Counsel marked for Plaintiff in Error.

BAXTER, CHAMPION & RICKS for Defendant in Error.

FREEMAN, J., delivered the opinion of the Court.

This is an action brought by defendant in error to recover for certain goods delivered to the Nashville & Chattanooga Railroad Company at Nashville, to be forwarded to consignees at Knoxville, Tenn., which it is alleged were lost by reason of the negligence of the road and were ruined and destroyed. The negligence specially alleged was failure to deliver goods in good order to the East Tennessee & Georgia Railroad Co., to be transported to Knoxville.

The defendant pleaded not guilty and that it did not undertake as alleged in the declaration, and gave notice of special matters to be relied on under said pleas.

The notice stated the matter thus to be relied on as follows: The company “will rely on following defenses: first, it is not guilty; second, non assumpsit; and third, that the property sued for was destroyed or injured about the time alleged in the declaration by a freshet of unprecedented height in the Tennessee River, and the loss was unavoidable, and by the act of God, without any negligence or default on the part of defendant.”

These issues thus entered present the points involved and to be decided by the jury with distinctness and accuracy.

The facts necessary to be noticed in this opinion are that the goods were received at Chattanooga about the 6th of March, 1867, and remained in possession of the railroad during the remarkable freshet of 1867, and were damaged by the water. The water it seems had risen so that it began to interfere with the railroad track on the 6th of March, and was at its highest on or abount the 12th of March, reaching a height that submerged the track of the road, and perhaps the depot, some ten or twelve feet. The water seems to have risen, from the 6th for several days, at a rapid rate. All the roads coming in at Chattanooga were broken up, the town submerged, and when the water subsided the track was covered with drift, in some places houses being left on the track by the flood. All the proof shows beyond question that such a flood had never occurred at this place within the memory of man, the old inhabitants who had witnessed other remarkable overflows since 1826, never having seen such a one as this, all agreeing that the water rose about fifteen feet, or near that, above what was known as the highest water-mark in previous freshets.

The proof further shows that a large amount of freight was in defendant's charge at Chattanooga at the time and the road much pressed with business. We need not go into a further detail of the facts, except to add that the proof shows that in the original location of the road and depot of the company, it was located on ground that was about three feet above what was known as high-water mark, as indicated by previous freshets.

The jury found a verdict for plaintiff, and defendant, after new trial being refused, prosecutes an appeal to this court in the nature of a writ of error.

Several objections are presented to the charge of the court, some of which we will proceed to notice.

The court charged the jury, “If you find that defendant used all the diligence which human sagacity could suggest in protecting plaintiff's property, then you must find for the defendant,” and such is the general theory of the charge. This proposition involves the idea that the railroad company must have agents possessed of the maximum of human sagacity, and the limit of their diligence or efforts to save these goods must be “all which human sagacity could suggest.” This is the statement of a rule, the requirements of which could seldom, if ever, be met in the transaction of business of this character, for it would be impossible that all the roads of the country should be able to command employees possessing the highest human sagacity, nor does the law make any such stringent and unreasonable demand upon them in order to shield them from liability in a case like the present. The sounder rule is thus given by the Supreme Court of the United States: citing from 20 P., R., 171, in case of Railroad Co., v. Reeves, 10 Wall., 191, “that when...