Southern Ry. Co. v. Simpson

• Decision Date: 27 March 1924
• Citation: 261 S.W. 677,149 Tenn. 458
• Parties: SOUTHERN RY. CO. v. SIMPSON. SOUTHERN RY. CO. v. HARLAN.
• Court: Tennessee Supreme Court

261 S.W. 677

149 Tenn. 458

SOUTHERN RY. CO. v. SIMPSON.

SOUTHERN RY. CO. v. HARLAN.

Supreme Court of Tennessee.

March 27, 1924

Certiorari to Court of Civil Appeals.

Separate actions by John W. Simpson, administrator, and James Harlan by next friend, against the Southern Railway Company. Cases consolidated. Judgments for plaintiffs were reversed by Court of Civil Appeals, and cases remanded for new trial, and plaintiffs bring certiorari. Affirmed.

GREEN C.J.

These are two damage suits growing out of a collision between a train of the plaintiff in error and an automobile occupied by Henry B. Simpson and James Harlan. The former was killed; the latter injured. John W. Simpson qualified as administrator of Henry B. Simpson, and brought suit to recover damages for Henry B. Simpson's death. James Harlan, a minor, brought suit by his next friend for injuries that he sustained. The two cases were tried together, and there was a judgment for the plaintiff below in each case. From these judgments the railway company appealed to the Court of Civil Appeals, and that court reversed the cases for error in the charge. The cases have been brought to this court on petition for certiorari.

The accident occurred in the incorporated town of Sweetwater. Recovery is sought because of the alleged failure of the railway company to observe the precautions required by subsection 3 of section 1574, Thompson's-Shannon's Code, as follows:

"On approaching a city or town, the bell or whistle shall be sounded when the train is at the distance of one mile, and at short intervals till it reaches its depot or station and on leaving a town or city, the bell or whistle shall be sounded when the train starts, and at intervals till it has left the corporate limits."

Evidence introduced for the plaintiffs below tended to show that the automobile had gotten upon the track and was struck by the front of the engine. Evidence introduced for the railway company tended to show that its train was passing over a street crossing, and that the automobile ran into the train striking the ninth car from the engine.

There was also evidence introduced for the plaintiffs below tending to show that the railway company had not observed the requirements of subsection 3 above quoted. This being the state of the proof, the trial judge instructed the jury that the provisions of the statute were mandatory, "and it would make no difference whether the train ran into the automobile or the automobile into the train so far as liability is concerned under the statute that has been read to you."

This portion of the charge and another portion which we need not consider in view of our disposition of the case was held to be reversible error by the Court of Civil Appeals.

The question presented to us is whether the precautions required of railroad companies entering or leaving an incorporated city or town were intended to prevent collisions between an automobile and the side of a train.

So far as subsection 4 of section 1574 of Thompson's-Shannon's Code is concerned, it is well settled that its provisions apply only where the object struck was an obstruction on the track in front of or ahead of the train. Whittaker v. Railroad, 132 Tenn. 576, 179 S.W. 140, and cases cited.

Subsection 4, however, was designed to warn persons and animals off the track that had entered thereupon, and to prevent collisions with objects already on the track ahead of the train.

Subsection 2, with reference to crossing signals, and subsection 3 above quoted, were primarily designed to prevent persons entering upon the track. The decisions construing subsection 4 are not, therefore, necessarily controlling in construing ...