Patton v. East Tennessee, V. & G.R. Co.

• Decision Date: 05 November 1890
• Citation: 15 S.W. 919,89 Tenn. 370
• Parties: PATTON v. EAST TENNESSEE, V. & G. R. CO.
• Court: Tennessee Supreme Court

15 S.W. 919

89 Tenn. 370

PATTON v. EAST TENNESSEE, V. & G. R. CO.

Supreme Court of Tennessee.

November 5, 1890

Appeal from circuit court, Washington county; ANDREW J. BROWN Judge.

Newton Hacker and Deaderick & Epps, for appellant.

Wm. M Baxter and Kirkpatrick & Williams, for appellee.

LURTON J.

John C Tipton was killed by collision with a train operated by defendant in error while walking upon the track. His administrator brought this suit to recover damages for the negligent killing of his intestate. A demurrer was filed to the declaration, and upon argument was sustained, and the suit dismissed. The first count of the declaration in substance alleges that the intestate was walking upon the track, about one mile west of Telford station. That he was overtaken by a train of freight cars going west, and stepped aside until the train passed, when he returned to the track, and resumed his journey in rear of the train just passed. While passing over a bridge and waterfall, and unconscious of the approach of another train, he was overtaken and killed by some detached freight-cars which belonged to the train just passed. That the freight train, while going down grade, had broken in two, and that the rear portion was following the front section by force of gravity at a distance of about 200 yards. That, though there were upon this detached portion servants and employes of the company, there was no one upon the lookout ahead, to give warning of the approach of these cars, or to make an effort to stop them by putting down the brakes. It charges that intestate was in a position where he could have been seen if there had been any one upon the front end of the detached cars, and that it was negligence not to have some one in such position that a person on the track could have been seen and warned of his danger or the train stopped. A second count charges that the breaking of the train into two parts was the result of defective machinery and unskillful servants. The demurrer to the second count was properly sustained. The connection between this accident and the negligence by which this train became broken into two parts is too remote. Such negligence, upon the facts stated, was not the proximate cause of this injury. As observed by counsel for the railway company, "a proximate cause is indicated by a probable result, and not a result extraordinary, or which could not have been expected or anticipated." Does the first count state such a case as entitles plaintiff to go to a jury? We agree with the learned circuit judge in holding that the statutory precautions prescribed by section 1166, subsec. 5, of the Code, do not apply to the movement of detached cars, such as those causing this death. The case provided for by the statute is that of a train pulled by a locomotive, and the precautions are those required to be observed by those servants upon the engine, and have regard to obstacles on the track in front of or ahead of the engine. The persons required by the Code to be on the lookout is "the engineer, fireman, or some other person upon the locomotive." He is to be on the lookout "ahead;" that is, in the direction in which the engine is moving. The precautions to be observed when any person or obstruction appears on the track are chiefly such as can only he found upon the engine. It does not at all follow that, because the statutory precautions do not apply to the movement of cars detached as these, therefore the railway company was under no responsibility to take care that in the movement of such cars it did no injury to persons upon its track. The principles of the common law govern in cases not within the purview of the statute.

The first question, then, to be considered is as to the duty of the railway company with reference to the movement of trains or cars having no locomotive in front to warn persons upon its track. Obviously, if a person is seen upon the track, and so near as to be apparently in danger, the duty of the company, irrespective of the statute, would be to do all that was possible to prevent an accident, by giving an alarm, and stopping the train; and so this court has frequently said that the common law is only re-enacted by one statute with reference to the duty of the company when a person or obstruction is seen on the track. Knowledge of the danger imposes the duty to do all that is possible to stop the train and prevent the accident. Railroad Co. v. Humphreys, 12 Lea, 200; Horne v. Railroad Co., 1 Cold. 76; Railroad Co. v. Pratt, 85 Tenn. 13, 1 S.W. 618. This much is clear. But it is argued that the declaration does not allege that the intestate was seen on the track, and that at the common law the duty to do all that is possible to prevent an accident only arises with reference to a trespasser upon the track when such person is seen to be on the track and in danger. Upon this point the declaration charges "that while defendant's servants were upon said detached portion of said train, there was no one on the lookout ahead on the front portion thereof to give plaintiff's intestate warning of its approach, and defendant's employes on said...