Tennessee Cent. R. Co. v. Gilbert

• Decision Date: 29 March 1915
• Citation: 174 S.W. 812
• Parties: TENNESSEE CENT. R. CO. v. GILBERT.
• Court: Tennessee Supreme Court

Page 812

174 S.W. 812

TENNESSEE CENT. R. CO. v. GILBERT.

Supreme Court of Tennessee.

March 29, 1915.

Certiorari to Court of Civil Appeals.

Action by Mrs. Erwin Gilbert, by next friend, against the Tennessee Central Railroad Company. There was a judgment for plaintiff, and defendant brought error. The judgment being reversed and remanded by the Court of Civil Appeals, plaintiff brings certiorari. Affirmed.

Walter Stokes, of Nashville, and Lillard Thompson and J. H. Campbell, both of Lebanon, for Tennessee Cent. R. Co. W. S. Faulkner and A. A. Adams, both of Lebanon, for Gilbert.

WILLIAMS, J.

This is an action brought by appellee as plaintiff in the court below to recover damages for personal injuries alleged to have been sustained while plaintiff was traveling on Maple street, in the city of Lebanon, at the point where the tracks of the railroad company cross that street.

The declaration alleges, and there was proof introduced tending to show, that plaintiff below was with her husband driving in a buggy, and had approached the crossing, intending to pass over, when the servants of the railroad company negligently drove at a rapid rate of speed a hand car down the track towards the crossing and frightened her horse, causing it to turn suddenly, thereby throwing her on the dashboard, on account of which she suffered injuries and a miscarriage, she being at the time in a delicate condition.

It is further alleged that the track at the point where the hand car was approaching was hidden from her view, and that, under an ordinance of the city, the company was required to keep at said crossing a watchman to warn the traveling public of danger from approaching cars, but that at the time of the accident the watchman was absent from his accustomed post, and that she believed, in the watchman's absence, that it was safe for her to cross.

The trial judge properly refused a motion for peremptory instructions in favor of the railroad company, and the jury rendered a verdict in favor of plaintiff.

The case is before this court on writs of certiorari to review the rulings of the Court of Civil Appeals made on appeal to that court.

The pertinent portion of the ordinance of the city of Lebanon in relation to the keeping of a watchman at the street crossing in question is, in substance, as follows:

"Said Tennessee Central Railway Company, its successors and assigns, shall * * * station a watchman on the north side of the track where same crosses Maple street * * * between the hours of six a. m. and twelve p. m. of each and every day after said railroad shall be put in operation and running its trains thereon."

It is clear that included within the duties of such watchman was that of warning travelers on Maple street of the approach of a hand car, as well as of the approach of ordinary freight or passenger cars or trains. A hand car is in operation comparatively noiseless, and has not mechanical equipment for sounding an alarm, and for strong reasons such cars fall within the evils against which the ordinance was directed. They have been so treated quite as of course. Lake Shore, etc., R. Co. v. Frantz, 127 Pa. 297, 18 Atl. 22, 4 L. R. A. 389. The contention of the defendant railroad company to the contrary is not well taken.

But it is next urged by defendant company that the last words in the quoted ordinance "and running its trains thereon" indicate that only trains of cars were thus to be by a watchman guarded against. These words are not capable of such application; they manifestly were used only to indicate the time when a watchman should be first stationed at the crossing — when the system should be installed.

The main contention of the company is...