Webb v. East Tennessee, V. & G.R. Co.

• Decision Date: 19 October 1889
• Citation: 12 S.W. 428,88 Tenn. 119
• Parties: WEBB v. EAST TENNESSEE, V. & G. R. CO.
• Court: Tennessee Supreme Court

12 S.W. 428

88 Tenn. 119

WEBB v. EAST TENNESSEE, V. & G. R. CO.

Supreme Court of Tennessee.

October 19, 1889

Appeal from circuit court, Bradley county; D. C. TRUEHITT, Judge.

P. B Mayfield and J. E. Mayfield, for plaintiff in error.

S. P Gant and J. N. Aiken, for defendant in error.

FOLKES J.

This was an action by an administrator to recover damages for the killing of plaintiff's intestate by the negligence of the employes of defendant company in the running of a train of cars. There was a verdict and judgment for plaintiff, in the sum of $5,500, to recover which, after the refusal of the circuit judge to grant a new trial, the defendant has brought the case here on writ of error. The declaration contained two counts, in the first of which the plaintiff declared on the facts in an action on the case at common law; in the second the right of recovery is placed upon the alleged failure of the defendant to comply with the statutory requirements set forth in section 1298, Mill. & V. Code. The court instructed the jury with reference to the law governing the case as made in each count, and directed them to say in their verdict upon which count they found, if at all, for the plaintiff. In response to such instruction, the jury, as shown upon the face of the verdict, predicated the defendant's liability upon the second count; that is, upon the failure of the company to comply with the statutory requirements. Concerning the facts, it is sufficient to say that plaintiff's intestate was killed, while on the track, by being run over by a regular train of defendant, which was approaching the depot in the town of Charleston; the accident occurring near the depot. There was a conflict in the proof as to whether the various provisions of the statute were complied with or not. Under these circumstances, the court charged the jury in the exact language of section 1298, reading from the statute each subsection thereof,--none of which need be noticed here except subsection 3, which is 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, until it reaches the depot or station; and on leaving a town or city the bell or whistle shall be sounded when the train starts, and, at intervals, until it has left the corporate limits." In this connection the judge said to the jury: "As appropriate to the consideration of the matter in the second count,--as to whether the injury complained of was in a town, and whether or not the defendant blew its whistle or rung its bell as required by the statute,--it is proper, perhaps, for me to define what is meant by the word 'town' in the statute, or what could constitute or make a town. Upon this point, I instruct you that a town may consist in the building in close proximity or connection a collection of, or many, houses, in which people live and do business, and have a market and stores of supplies; and in which such people live and do business, not as yoemen in the country, but as people living in a town or city. Or it may consist in the laying off a piece of land or ground into town lots and streets, and people building thereon, and buying and selling and living in such boundary as in a town, and recognized and treated as a town by people of the country, and otherwise. There are various definitions for the word 'town,' but I think the one I have given you sufficient in this case; and, be the meaning of the statute ( section 1298, subsec. 3) what it may as to trains on leaving the depot or station until they pass the corporate limits, I instruct you that as to trains approaching the town, and the requirement of the company to blow the whistle and ring the bell, the town need not necessarily be an incorporated one, for the statute to apply. The duty of the company, under this part of the section, applies alike to cities incorporated, and to unincorporated towns." It is unnecessary to say anything concerning the definition above given of a town, inasmuch as the assignment of error is only predicated upon such part of the charge quoted as we have italicized. The result of the charge, or its substance, is an instruction to the jury that the specific precautions pointed out in subsection 3 of section 1298 must be shown to have been complied with, or the verdict must be for the plaintiff, under section 1299, which enacts, as we know, that "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." So that if this jury had concluded from the proof that all of the precautions pointed out in the other subsections of section 1298 had been complied with, and that the defendant had exercised all the prudence that devolved upon it under the rules of the common law, yet, if they should find from the proof that the place of the accident was a town, within the definition given by the trial judge, although not an incorporated town, and if they should further find that the train inflicting the injury was approaching such town, and the company had failed to prove that the bell or whistle had been sounded when the train was at the distance of one mile, and, at short intervals, till it reached the depot or station, the verdict must be for the plaintiff. This was manifestly erroneous. The words of the statute must have a fair construction. There is no authority nor necessity for enlarging or extending or qualifying the meaning of the terms used in the statute, and every word must be given effect, if it can be done without doing violence to the manifest intention. If an incorporated town or city were not meant, why say in the last clause of the section under consideration that the bell or whistle should be sounded at intervals till the train "has left the corporate limits?" Where and how are the corporate limits of an unincorporated town to be located by the railroad company, within this statute? But it is urged at the bar that, if this be so as to trains leaving a town or city, the first clause of the subsection, which relates to trains approaching a city or town, does not mention "corporate limits," and that, as the accident here was occasioned by an approaching train, the limitation implied in the clause relating to departing trains should not control. It is sufficient to say that the use of the term at the end of the section may reasonably, if not necessarily, refer and apply to the entire section. If it were not so intended and used, to what are we to apply the language of the first clause, requiring the bell or whistle on an approaching train to be sounded "at the distance of one...