Nashville & Chattanooga R. R. Co. v. Thomas

• Decision Date: 30 April 1871
• Citation: 52 Tenn. 262
• Court: Tennessee Supreme Court
• Parties: Nashville & Chattanooga R. R. Co. v. E. Thomas.

52 Tenn. 262

Nashville & Chattanooga R. R. Co.

v.E. Thomas.

Supreme Court of Tennessee.

April Term, 1871.

FROM CARROLL.

Appeal in error from Circuit Court at Huntingdon. ISAAC R. HAWKINS, Special J.James P. Wilson for the Railroad Co., insisted: In this case the evidence clearly shows that the killing of the iron gray filly by the defendant was an unavoidable accident. The evidence shows that the train was going at the time at the rate of eighteen miles an hour, and that it was impossible to stop the train and prevent the accident. The animal, as the Court will observe from the evidence, jumped upon the track about twenty-five steps ahead of the engine when moving at the rate of eighteen miles per hour. The Court will also observe from the evidence of Fogerty and J. T. Ridley that the train could not be stopped under four or five hundred feet.

Defendants' attorney requested the Court to charge the jury, that if they should find from the proof that the animal killed jumped upon the track of the road so near the engine that it was impossible for the employees on the train to check or stop it before it came in contact with the filly killed or to prevent the accident, and that there was not sufficient time to do more than was done by the defendants, that then defendants would not be liable, which the Court refused to do.

The defendants contend that in this case they did all that was necessary and all that the law would require them to do under such circumstances. We asked the Court to charge the jury that if it was impossible for the employees on the train to check and stop it or to prevent the accident and that there was not sufficient time to do more than was done by defendants, the company would not be liable. The Court would not give this charge to the jury. Is the law so rigorous and must it be executed in such manner as to require of railroad companies or others impossibilities? The Court below, it would seem, would require a railroad company to do what it could not do. This is not reasonable, this is not right, and we think the Court erred in refusing to charge the jury as requested by defendants' counsel.

A. G, Hawkins for Thomas, insisted that strict compliance with requirements of sections 1166 and 1167 of the Code is the only way for a railroad to avoid responsibility.

NICHOLSON, C. J., delivered the opinion of the Court.

This is an action for damages for the killing of a horse on the Northwestern Railroad. The facts, as stated by the engineer, are these: “He was going in the direction of the cut where the animal was run over; he was traveling at the rate of eighteen miles an hour, when suddenly, as the train was approaching the mouth of the cut where the accident occurred, four or five animals as he supposed, jumped from the right of the road on the track, about twenty steps in front of the engine, and about fifteen steps from the mouth of the cut. He, as soon as he...