Nashville & Chattanooga R.R. Co. v. Smith

• Decision Date: 30 September 1871
• Citation: 53 Tenn. 174
• Parties: Nashville and Chattanooga Railroad Co. v. C. C. Smith, Adm'r, for use, &c.
• Court: Tennessee Supreme Court

53 Tenn. 174

Nashville and Chattanooga Railroad Co.

v.C. C. Smith, Adm'r, for use, &c.

Supreme Court of Tennessee.

September Term, 1871.

FROM MARION.

Appeal in error from the judgment of the Circuit Court, November Term, 1870. J. B. HOYL, J.KEY & RICHMOND for Plaintiff in Error.

NASH H. BURT for Defendant in Error.

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

This action is brought in the name of the administrator of John Smith, deceased, for the use of the widow and children, heirs and distributees of said John Smith, to recover damages against the Nashville and Chattanooga Railroad Company for killing the said John Smith, by running a train of cars over him about the last of September, 1865.

The declaration alleges that the engine, with a train of cars attached, at an unusual time and hour of the night, when engines and cars were not accustomed to run upon said road, it being very dark, with no headlight on said engine, or other light, without blowing the whistle or ringing the bell, as required by law, did run over and kill the said Smith, he being walking on said track at the time; and that said railroad company did recklessly, wrongfully, unlawfully and negligently run said engine at the time, whereby said Smith was killed, to the damage of plaintiff $25,000.

Defendant pleaded not guilty, upon which issue there was a trial by jury, and verdict for $10,000--$4,000 of which was remitted at the suggestion of the court, a new trial was refused, and appeal in the nature of a writ of error was taken to this court.

The facts necessary to be stated are, that the deceased was seen on the railroad track between sun-down and dark the evening he was killed; that about 10 o'clock at night a construction train passed along the road and ran over him, crushing his head and severing the body, killing him instantly. The party was said to be “drinking,” but not drunk, by the witness who passed him late in the evening. There was no head-light on the engine as it passed, nor was the whistle sounded, nor brakes put down to avoid the accident; in fact, Smith was not seen as far as the proof shows, nor was it shown by the parties in charge of the train that he was killed, or had been on the track, till perhaps next day.

It is probable from the proof that he was lying across the track, and asleep, and thus run over and crushed without attracting the attention of employees of the road running the train.

Several questions are presented and relied on here for reversal, arising on the charge of the court.

The court correctly held, that if it was shown that the party was killed by the defendants' cars running over him, liability would be incurred, and the jury must find for plaintiff, unless the defendants show by proof that the precautions laid down in the Code, s. 1106, sub-s. 5, were observed. In other words, when the killing by the cars of the company is shown, then the burden of proof is thrown on the defendant that all the care imposed by law had been exercised: 1 Col., 74, 75. By said section it is provided that “every railroad company shall keep the engineer, fireman, or some other person upon the locomotive always upon the lookout ahead; and when any 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.”

The court instructed the jury (after giving them the substance of the above section) that “if the injury occurred in the night time, it was the duty of defendants to avail themselves of, and have in use in the night time such means and appliances as might reasonably be obtained to enable their employees to see ahead on the track, and if they used the precautions above laid down, and an accident occurred they would not be liable.” The proof showed that no head-light was on the train on the night of the accident.

It is insisted his Honor erred in his instructions on this point when he goes on to tell the jury that the negligence of deceased in contributing to the accident would be no bar to the action unless it was shown the precautions above indicated were observed. It is argued very ingeniously that the statute does not...