Tennessee Cent. R. Co. v. Binkley

• Decision Date: 22 January 1913
• Parties: TENNESSEE CENT. R. CO. v. BINKLEY.
• Court: Tennessee Supreme Court

153 S.W. 59

127 Tenn. 77

TENNESSEE CENT. R. CO. v. BINKLEY.

Supreme Court of Tennessee.

January 22, 1913

Certiorari to Court of Civil Appeals.

Action by Alex Binkley against the Tennessee Central Railroad Company. There was a judgment of the Court of Civil Appeals affirming a judgment for plaintiff, and defendant petitions for writs of certiorari and supersedeas. Petition for certiorari dismissed, and judgment affirmed.

BUCHANAN J.

Binkley recovered judgment in the circuit court of Davidson county for $500 against the Railroad Company, and, on appeal, the judgment was affirmed by the Court of Civil Appeals; and the cause is before us on the petition of the Railroad Company for writs of certiorari and supersedeas.

The action was for damages and was based on this state of facts:

About 8:10 a. m. on February 20, 1910, Binkley, who had been drinking the night before and during that morning, was sitting on the end of a cross-tie on the railroad track of the defendant at a point within the city limits of Nashville near the Hermitage Elevator and beyond the Shady Lane Crossing. It is clearly to be inferred from the proof that while so sitting, he either fell asleep or was so intoxicated as to be unaware of the dangers of his position; for, while so situated, one of the defendant's engines, pulling a train of 28 cars, came along the track, and struck and seriously injured him.

The action is predicated on the negligent operation of this train, and the failure of the defendant to observe the precautions required by section 1574, and its subsections, of Shannon's Code. The declaration does not specifically aver the failure to observe these precautions, but it did aver that:

"The defendant carelessly and negligently ran one of its engines and trains upon, against, and over plaintiff, whereby he was crushed, mangled, bruised," etc.

This court has held averments the same in substance as the above to be sufficient to give the defendant notice that the suit is based on its failure to observe the precautions required by the statute, and that such declaration was good notice to the defendant to come to trial "prepared to show that it had neither done, nor omitted to do, any act which the law," both before and after the passage of the statute, made negligence. E. T. Va. & Ga. R. R. Co. v. Pratt, 85 Tenn. 9, 1 S.W. 618; Railroad v. Davis, 104 Tenn. 442, 58 S.W. 296; Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737; R. R. Co. v. Crews, 118 Tenn. 64, 99 S.W. 368.

Petitioner made three assignments of error in this court, but, as we understand them, they present only two questions:

First. Was the defendant entitled to the following special instruction which it requested the trial judge to give at the conclusion of the general charge, and which was refused? The special instruction is as follows:

"If you find plaintiff went upon the railway track while under the influence of whisky, or in an intoxicated condition, and should find that the train of defendant company ran against and injured plaintiff without observing all the statutory precautions, which I have explained to you, and you should further find that at the time the train ran against the plaintiff the plaintiff was drunk or asleep on the railway track, then, in such case, the plaintiff could not recover more than nominal damages; that is to say, one cent or one dollar."

The right of the defendant to the foregoing special instruction depends upon the proper construction of section 1575 of Shannon's Code, which is as follows:

"Every railroad company that fails to observe these precautions or cause them to be observed by its agents and servants shall be responsible for all damages to persons or property occasioned by, or resulting from, any accident or collision that may occur. (1855-56, ch. 94, sec. 9.)"

This section must be construed in pari materia with section 1574 and its subsections 1 to 4, inclusive, to section 1576 of Shannon's Code, inasmuch as these three sections of Shannon's Code are carried into that Code from sections 1166, 1167 and 1168 of the Code of 1858, and constitute part and parcel of a general scheme of legislation, which should be looked to in toto when any part is under construction. This legislation in the Code of 1858 had appeared in part in chapter 94, Acts of 1855-56.

Our cases construing this legislation are numerous. Into one clearly marked class fall those in which it has been held that this legislation did not apply, and that the rights of the parties could only be worked out by an application of the common law. Some of these are:

Railroad Co. v. Feathers, 10 Lea, 103; Holder v. Railroad Co., 11 Lea, 176; L. & N. R. R. Co. v. Robertson, Adm'r, 9 Heisk. 276; Haley v. M. & O. R. R. Co., 7 Baxt. 239; N. C. & St. L. R. R. Co. v. Seaborn, 85 Tenn. 391, 4 S.W. 661; Cox v. Railroad Co., 1 Shan. Cas. 475; Railroad Co. v. Pugh, 95 Tenn. 421, 32 S.W. 311; Railroad Co. v. Rush, 15 Lea, 150; Bradley v. Railroad Co., 14 Lea, 377; Taylor v. Railroad Co., 93 Tenn. 307, 27 S.W. 663.

Another, and equally well-marked, class are those held to be within the application of the statute, and some of these are:

L. & N. R. R. Co. v. Burke, Adm'x, 6 Cold. 50; Hill v. L. & N. R. R. Co., 9 Heisk. 823; L. & N. R. R. Co. v. Conner, Adm'x, 9 Heisk. 26; M. C. R. R. Co. v. Smith, 9 Heisk. 861; N. & C. R. R. Co. v. Thomas, 5 Heisk. 264; Railroad Co. v. Foster, 88 Tenn. 676, 13 S.W. 694, 14 S.W. 428; Railroad Co. v. Scott, 87 Tenn. 494, 11 S.W. 317; Railroad Co. v. House, 96 Tenn. 555, 35 S.W. 561; Railroad Co. v. Dies, 98 Tenn. 659, 41 S.W. 860; Artenberry v. Railroad Co., 103 Tenn. 270, 52 S.W. 878; Railroad Co. v. Howard, 90 Tenn. 150, 19 S.W. 116; Railroad Co. v. Wilson, 90 Tenn. 271, 16 S.W. 613, 13 L. R. A. 364, 25 Am. St. Rep. 693; Railroad Co. v. White, 5 Lea, 540; Railroad Co. v. Scales, 2 Lea, 689; Railroad Co. v. Swaney, 5 Lea, 119; and Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737.

The present case, upon its facts, falls clearly within the operation of this legislation. We do not understand a contrary insistence to be made. The right of defendant to the special instruction already set out is urged mainly upon the authority of an unreported per curiam opinion of this court delivered at its September term, 1909, in the case styled C., N. O. & T. P. R. R. Co. v. Alexander Abbott, Adm'r, from the Scott County Law Docket. The opinion of the court in that case fully warranted the special charge already set out which was properly requested, but refused by the circuit judge, and the important question now presénted is whether we will adhere to or overrule the opinion in the Abbott Case.

The declared purpose of the Legislature in the passage of the sections of the Code of 1858 already referred to was "to prevent accidents on railroads," and, pursuant to that purpose, it prescribed certain named precautions to be observed. These appear in section 1574, Shannon's Code, and its subsections, and, in addition to those named, it added in concluding subsection No. 4, of section 1574, words which mean that, when any person, animal, or other obstruction appears upon the road, every possible means shall be employed to stop the train and prevent an accident, but it is to be noted that each and all of the precautions (except those required of overseers of public roads by the first subsection of section 1574) are required to be observed by the railroad employés in the operation of engines and trains. No correlative duty to observe any precautions whatever to carry out the purpose of this legislation is laid upon him whose "person, animal, or other obstruction appears upon the road"; for, by the terms of section 1575 of Shannon's Code, if he or his property be injured by a collision, the railroad company is made responsible for all damages, in the event of the failure on the part of the railroad company to observe or cause to be observed the precautions required. Section 1576, Shannon's Code, grants to the railroad immunity from any damage done to person or property on the road where it has observed the required precautions, but imposes upon it the burden of proving that it has observed them.

It has always been the public policy of this state, recognized by the Legislature and this court, to require of railroad companies in operations of the kind to which this legislation applies the observance of every possible precaution to avoid accidents and injury to others.

Such was its policy before the Code of 1858, and before the Act of 1855-56, c. 94, as was evidenced by the Act of 1853-54, c 33, by which railroad companies were made liable for all stock killed or damaged by them, except in cases where owners placed or caused it to be placed on the railroad for the purpose of having it killed or injured,...