Walton v. Chattanooga Rapid Transit Co.

• Decision Date: 29 September 1900
• Parties: WALTON v. CHATTANOOGA RAPID-TRANSIT CO.
• Court: Tennessee Supreme Court

58 S.W. 737

105 Tenn. 415

WALTON v. CHATTANOOGA RAPID-TRANSIT CO.

Supreme Court of Tennessee.

September 29, 1900

Appeal from circuit court, Hamilton county; Floyd Estill, Judge.

Action by O. F. Walton against the Chattanooga Rapid-Transit Company for injuries received while crossing defendant's track. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Pritchard & Sizer, for appellant.

W. T Murray, for appellee.

WILKES J.

This is an action for damages for personal injuries. There was a trial before the court and a jury, and a verdict and judgment for $1,200 and costs, and the transit company has appealed and assigned errors.

It is said the court should have sustained the demurrer to the first count in the declaration, which is, in substance, that it does not specify any facts or circumstances as the cause of the injury, and is too vague and indefinite to support an action, or apprise defendant of the ground of complaint. The allegation in this count is that defendant "did wrongfully and negligently run one of its engines and cars upon, over, and against the plaintiff." The court has heretofore held, in the case of Railroad Co. v Davis (decided at Jackson, April term, 1900) 58 S.W 296, that such allegation is a sufficient statement of a cause of action. See, also, Railroad Co. v. Pratt, 85 Tenn. 9, 1 S.W. 618, where the declaration was similar to this, and was treated as good, though no question was made upon its sufficiency.

It is next assigned as error that there is no specific averment in the declaration that the brake on the train was in defective condition and out of order, and, in the absence of such averment, evidence of such fact is inadmissible. It is true, an action cannot generally be maintained by evidence of acts of negligence which are not averred in the declaration, or upon evidence of a specific act different from that alleged in the declaration, as was held in Coal Co. v. Daniel, 100 Tenn. 65, 42 S.W. 1062; Fletcher v. Railroad Co., 102 Tenn. 1, 49 S.W. 739. But we think these authorities are not controlling in cases like the present. Here there is an allegation in the first count that the railroad negligently ran its train over the plaintiff, and this, in the opinion of the court, is sufficient to let in evidence of any statutory negligence of which the road may have been guilty in so running over him. Railroad Co. v. Pratt, 85 Tenn. 9, 1 S.W. 618.

The statute provides for the sounding of a whistle or bell at every public designated crossing; that an engineer, fireman, or some other person shall be on the locomotive, and always on the lookout ahead, and when any person, animal, or obstruction appears upon the track, the alarm whistle shall be sounded, the brakes put down, and every possible means used to stop the train and prevent an accident. Shannon's Code, § 1574, subsecs. 1-4. It is further provided that every railroad company that fails to observe these precautions--meaning all of these (Railroad Co. v. Gardner, 1 Lea, 690, 691)--shall be responsible for all damages to person or property occasioned by or resulting from any accident or collision that may occur. Shannon's Code, § 1575. And, if the precautions are observed, it shall not be liable. Id. § 1576. And the proof that it has observed these precautions shall be upon the company. Id. § 1576. And by section 1577 it is further provided that, even in cases of killing stock or injuring the same, the burden of proof that it was unavoidable shall be on the company. In construing these provisions, it has been heretofore held by this court, in an unbroken line of decisions, that the railroad company is liable, unless it can show that these provisions and precautions have been observed, and the fact that the accident or collision would have occurred, had the requirements been performed, will not relieve the company from their performance, nor from liability for damages. It has been said that cases of hardship or even absurdity may occur under such construction, but the language is explicit and certain, and capable of being given no other meaning. Railroad Co. v. Burke, 6 Cold. 45-50; Railroad Co. v. Connor, 9 Heisk. 26; Hill v. Railroad Co., Id. 827; Railroad Co. v. Smith, Id. 863, 864; Railroad Co. v. Thomas, 5 Heisk. 266; Railway Co. v. Foster, 88 Tenn. 678, 13 S.W. 694, 14 S.W. 428. So strict is the rule, that contributory negligence will not excuse its observance, be it ever so gross, but will only go in mitigation of damages. Railroad Co. v. Burke, 6 Cold. 45-51; Railroad Co. v. Smith, 6 Heisk. 177; Railroad Co. v. Walker, 11 Heisk. 385; Simpson v. Railroad Co., 5 Lea, 456; Railway Co. v. Foster, 88 Tenn. 675-680, 13 S.W. 694, 14 S.W. 428; Railroad Co. v. Connor, 2 Baxt. 382. It is true that impossibilities are not required, and if all is done that should have been done, and the accident was unavoidable, the road will not be liable. Railroad Co. v. Scales, 2 Lea, 688, 691, 694; Railroad Co. v. Swaney, 5 Lea, 119; Railway Co. v. Foster, 88 Tenn. 680.13 S.W. 694, 14 S.W. 428. But, when the impossibility and unavoidableness arise out of the default of the road, the road will still be liable. Railroad Co. v. Anthony, 1 Lea, 516; Railroad Co. v. Selcer, 7 Lea, 559. The plea or defense that all efforts would have been ineffectual will not protect the road. The injunction of the law is peremptory, and the consequence of a failure is unconditional liability for damage done, in cases coming within the statute. Railroad Co. v. St. John, 5 Sneed, 524-530. And speculation as to the effect will not be indulged by the court, or permitted by the road, but the statute demands absolute obedience, whether the precautions seem necessary or not. Hill v. Railroad Co., 9 Heisk. 827; Railway Co. v. Foster, 88 Tenn. 679, 13 S.W. 894, 14 S.W. 428. This court has said, in substance, that it is the duty of all who are engaged in running the train, in whatever department they may be employed, to give the entire energies of their bodies and minds, and to bring into requisition all means at their command to stop the train as soon as possible, and prevent the accident (Railroad Co. v. Connor, 9 Heisk. 22), and that the road must be able to show, not only that the specific precautions were observed, but, in addition, that all possible means were employed to stop the train and prevent the accident. But the company will not be required to perform impossibilities. Railroad Co. v. Smith, 9 Heisk. 863; Railroad Co. v. Scales, 2 Lea, 688. It is incumbent on the road to show that all the brakes were put down by the express terms of the statute. Railroad Co. v. Smith, 9 Heisk. 864. And this rule applies to dummy lines, whether in or out of the city. Katzenberger v. Lawo, 90 Tenn. 239, 16 S.W. 611, 13 L. R. A. 185.

As to the burden of proof being upon the railroad, the statute is very plain and emphatic. It says, "The proof that it has observed said precaution shall be upon the company." Shannon's Code, § 1576. And this means all the precautions enumerated in the statute. Railroad Co. v Gardner, 1 Lea, 690. This is no new rule. It has been uniformly held that when either stock or persons are killed or injured on the track of a railroad where the statutory precautions must be observed, the burden of proof is upon the company to show that they were observed, and that it was guilty of no negligence, and that the accident was unavoidable; and this is not a new rule, but the announcement of a common-law principle. Horne v. Railroad Co., 1 Cold. 74; Railroad Co. v. Fugett, 3 Cold. 404; Burke v. Railroad Co., 7 Heisk. 462; Railroad Co. v. Connor, 9 Heisk. 21; Railroad Co. v. Mitchell, 11 Heisk. 400; Dillard v. Railroad Co., 2 Lea, 296; Railroad Co. v. Stewart, 13 Lea, 432; Railroad Co. v. Pratt, 85 Tenn. 9, 1 S.W. 618. It is only incumbent on the plaintiff to prove the injury by collision in the first instance, and when this is done the statute throws upon the company the burden of excusing itself, which it can only do by showing a compliance with the statutory precaution; and when this is attempted the plaintiff may show otherwise, and also rebut the testimony of defendant company as to the accident itself. Railroad Co. v. Parker, 12 Heisk. 50. When the killing or injury is proved, in order that the company may show a compliance with the statute, and remove the presumption of negligence, the onus and necessity are upon it to show that it had the means to be thus employed,--in other words, that it not only did what the statute requires as to sounding the bell or whistle and having some person on the lookout ahead, but that its road and its machinery and equipments are according to the present state of the art, or in reasonable conformity thereto. Railroad Co. v. Connor, 9 Heisk. 22; Sommers v. Railroad Co., 7 Lea, 204; Railroad Co. v. Stewart, 13 Lea, 432. To illustrate: It has been held that the lookout ahead must have good eyesight, and must occupy a position to enable him to see ahead to the best advantage. If it is nighttime, the engine must be supplied with the best headlight the state of the art affords. Railroad Co. v. Smith, 6 Heisk. 177; Railroad Co. v. Melton, 2 Lea, 262; Railroad Co. v. Nowlin, 1 Lea, 525; Railroad Co. v. Stone, 7 Heisk. 471; Railway Co. v. Logue, 13 Lea, 35. And it must be shown that the brakes were put down. Railroad Co. v. Smith, 9 Heisk. 864. ...