Preslar v. Mobile & O.R. Co.

• Decision Date: 22 April 1916
• Parties: PRESLAR v. MOBILE & O. R. CO.
• Court: Tennessee Supreme Court

185 S.W. 67

135 Tenn. 42

PRESLAR v. MOBILE & O. R. CO.

Supreme Court of Tennessee.

April 22, 1916

Certiorari to Court of Civil Appeals.

Action by E. E. Preslar, as administrator of the estate of W. A Lemon, deceased, against the Mobile & Ohio Railroad Company. A judgment for defendant was affirmed by the Court of Civil Appeals, and plaintiff brings certiorari. Affirmed.

Deason Elder & Holmes, of Trenton, for plaintiff.

Cooper & Clark, of Trenton, for defendant.

WILLIAMS J.

W. A Lemon, the intestate of plaintiff, was killed by a piece of scantling which projected from a carload of lumber in a train operated by defendant through the city of Trenton. Intestate was, or had been, a railroad man in his home state of Illinois, and at the time of his death was on a visit to Trenton. It appears that he had taken a walk down defendant's line of railway some distance south of the depot, and had seated himself on the end of a crosstie in the main line. Opposite him there was a freight train standing on a siding that was east of and paralleled the main line, the engine heading south and standing near the switch point south of where the deceased sat. Another of defendant's trains, a through freight train, coming in from the south on the main line, blew for the station, and the bell was also ringing. Deceased arose and started towards the depot. This placed him between the two freight trains. The piece of scantling that projected from the lumber car which was about seven cars back of the engine of the north-bound train, struck plaintiff's intestate, killing him. The scantling protruded about six feet from the edge of the car on its east side.

The track was straight enough to have permitted deceased to have seen the projection had he looked back. This piece of lumber scraped the cab of the engine on the side track in passing it, but the proof does not show when, if at all, before that it had become detached and swung out from the car. Actual knowledge of its projection on the part of the employés operating the through freight train was not shown, though it could have been seen from the engine and the caboose.

No reason or excuse for deceased's being at the particular place is given in pleading or proof; it is not shown that he was walking, when struck, along a path that was customarily used by the public as a walkway. On the contrary, counsel for the plaintiff admit that deceased was a trespasser.

At the close of the plaintiff's testimony the defendant company moved for peremptory instructions in its favor, which motion was sustained. The Court of Civil Appeals affirmed the judgment.

It is urged in this court for error that there was a failure on the part of the enginemen on the through train to observe the precautions prescribed by the statute, and that the railway company is liable.

The statute (Code, Shannon, § 1574, subsec. 4) provides that:

"Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the

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