Southern Ry. Co. v. Brooks

• Decision Date: 18 December 1911
• Parties: SOUTHERN RY. CO. v. BROOKS.
• Court: Tennessee Supreme Court

143 S.W. 62

125 Tenn. 260

SOUTHERN RY. CO. v. BROOKS.

Supreme Court of Tennessee.

December 18, 1911

Certiorari to Court of Civil Appeals.

Action by R. H. Brooks against the Southern Railway Company. There was a judgment of the Court of Civil Appeals, reversing a judgment for plaintiff, and plaintiff brings certiorari. Judgment affirmed, and case remanded.

King & King and W. N. Hickey, for plaintiff.

Susong & Biddle, McCanless & Coleman, and Holloway & Hickey, for defendant.

SHIELDS C.J.

This is an action to recover damages for personal injuries sustained by R. H. Brooks while a passenger upon one of the passenger trains of the Southern Railway Company. The accident occurred at a station of the railway company, while the train was moving at about two miles an hour and almost in the act of stopping, and resulted from the sudden application of the emergency brakes by the engineer, causing the entire train to lurch backward and recoil with unusual force and violence. The passengers for that station had been notified to disembark and were preparing to do so. Brooks had arisen from his seat, turned towards the rear of the coach, and was in the act of going back to assist his wife, who was also a passenger, and, when the brakes were applied, was thrown down and against a seat, sustaining serious and permanent personal injuries.

The railway company in its defense proved by the engineer in charge of the locomotive that the brakes were applied in order to prevent the striking and probable killing of a boy who suddenly appeared upon the track some ten feet ahead of the pilot and was crossing to the opposite side, angling towards the engine, in compliance with the statute requiring certain precautions to be observed by railroad companies to prevent injuries to persons and animals upon the road before an approaching train.

The trial judge charged the jury that it was the duty of the railway company to keep some one upon its locomotives always upon the lookout ahead, and, when any person, animal, or other obstruction appeared upon the road, to sound the alarm whistle, put down the brakes, and use every possible means to stop the train and prevent the accident but, while this was true, it was also its duty to exercise the highest degree of care, skill, and foresight possible for the safety of its passengers, and that it was not required to observe the statutory precautions when it would endanger the lives or limbs of passengers. In effect, the jury was instructed that, where the duty to observe the statutory precautions conflicted with that to passengers, the later must prevail and be discharged. The charge is quite lengthy but, while not in the words of the trial judge, the above is the substance and effect of the instruction given to the jury upon this subject.

There was verdict and judgment in favor of the plaintiff below. The railway company carried the case to the Court of Civil Appeals, and there assigned as error, among other things, the instruction to the jury above stated, which assignment was sustained, and the case is now before us upon certiorari prosecuted by Brooks to reverse the judgment of that court.

Railroad companies, as common carriers, undertake to safely carry and deliver their passengers at their destination. In the performance of this contract and obligation, it is their duty to exercise the highest practicable degree of care and skill and for failure to do so they are liable in damages for all injuries sustained by passengers. They are not insurers of the safety of passengers, as they are of freight. Every one who travels on the conveyances of a common carrier assumes some risks, such as are necessarily incident to that mode of travel, and for an injury sustained without the fault, or negligence of the carrier there is no remedy. Injuries caused by the ordinary and unavoidable jolts and jars of moving trains are within this class. This duty of carriers to their passengers must be strictly discharged, and generally an injury to a passenger raises a rebuttable presumption of negligence and liability.

Railroad companies also owe duties to persons who may appear upon their road, or within striking distance of their trains. The statute (Shannon's Code, §§ 1574-1576) requires railroad companies to keep the engineer, fireman, or some other person upon their locomotives always upon the lookout ahead, and when any person, animal, or other obstruction appears upon the road, to sound the alarm whistle, put down the brakes and employ every possible means to stop the train and prevent an accident, and provides that upon failure to observe these precautions the company shall be liable for all damages to person or property resulting from any accident or collision that may occur, and also, when such precautions are observed, that they shall not be responsible for such damages; the burden of proving the observance being upon the company. The provisions of this statute have been repeatedly held by this court to be imperative and mandatory, and to require absolute obedience. They must be complied with, regardless of whether it appears they are necessary or will be effective...