Nashville & K. R. Co. v. Davis

• Decision Date: 08 February 1902
• Citation: 78 S.W. 1050
• Court: Tennessee Supreme Court
• Parties: NASHVILLE & K. R. CO. v. DAVIS.

Page 1050

78 S.W. 1050

NASHVILLE & K. R. CO. v. DAVIS.

Supreme Court of Tennessee.

February 8, 1902.^*

Appeal from Circuit Court, Putnam County.

Action by one Davis against the Nashville & Knoxville Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

O. C. Conatser, for appellant. Bryant & McBroom, for appellee.

WILKES, J.

This is an action for damages against the railroad company for running over and killing three geese of the value of $1.50. The owner of the geese lived about one mile from the railroad, but permitted them to run at large, and they went upon the railroad track near a public crossing. The engineer blew the whistle and rang the bell for the crossing, but there is no proof that he rang the bell or sounded the alarm for the geese. Whether the geese knew of this failure to whistle for them does not appear. We think there is no evidence of recklessness or common-law negligence shown in the case, and the only question is whether a goose is an animal or obstruction in the sense of the statute (section 1574, subsec. 4, Shannon's Compilation), which requires the alarm whistle to be sounded, and brakes put down, and every possible means employed to stop the train and prevent an accident when an animal or obstruction appears on the track. It is evident that this provision is designed, not only to protect animals on the track, but also the passengers and employés upon the train from accidents and injury. It would not seem that a goose was such an obstruction as would cause the derailment of a train, if run over. It is true, a goose has animal life, and, in the broadest sense, is an animal; but we think the statute does not require the stopping of trains to prevent running over birds, such as geese, chickens, ducks, pigeons, canaries, or other birds that may be kept for pleasure or profit. Birds have wings to move them quickly from places of danger, and it is presumed that they will use them (a violent presumption, perhaps, in the case of a goose, an animal which appears to be loath to stoop from its dignity to even escape a passing train). But the line must be drawn somewhere, and we are of the opinion that the goose is a proper bird to draw it at. We do not mean to say that in the case of recklessness and common-law negligence there might not be a recovery for killing geese, chickens, ducks, or other fowls, for that case is not presented. Snakes, frogs, and fishing worms, when upon railroad tracks, are, to...