Whittaker v. Louisville & N.R. Co.

• Decision Date: 02 October 1915
• Citation: Whittaker v. Louisville & N.R. Co., 179 S.W. 140, 132 Tenn. 576 (Tenn. 1915)
• Parties: WHITTAKER v. LOUISVILLE & N. R. CO.
• Court: Tennessee Supreme Court

179 S.W. 140

132 Tenn. 576

WHITTAKER v. LOUISVILLE & N. R. CO.

Supreme Court of Tennessee.

October 2, 1915

Certiorari to Court of Civil Appeals.

Action by Mrs. W. M. Whittaker against the Louisville & Nashville Railroad Company. From a judgment of the Court of Civil Appeals, reversing a judgment of the circuit court for Knox county for plaintiff and remanding for a new trial, the plaintiff brings certiorari. Affirmed.

J Alvin Johnson and Pickle, Turner, Kennerly & Cate, all of Knoxville, for plaintiff.

Johnson & Cox and Jas. B. Wright, all of Knoxville, for defendant.

NEIL C.J.

This action was originally brought before a justice of the peace to recover judgment for an injury alleged to have been inflicted upon the plaintiff by the defendant. There was a judgment in favor of the plaintiff before the justice, and from this an appeal was prosecuted to the circuit court of the county. In that court there was likewise a judgment against the railroad company. An appeal was then prosecuted to the Court of Civil Appeals, and the judgment of the circuit court was there reversed and the cause remanded for new trial. We are of the opinion that the conclusion reached by the Court of Civil Appeals was correct, and that the judgment of that court should be affirmed.

We shall now endeavor to make clear our reasons for this conclusion.

Although the suit was begun before a justice of the peace, and according to the practice before such officers, there was no declaration but only a warrant, yet this warrant was practically as full as the declaration in a circuit court and necessarily so, inasmuch as under recent decisions of this court it has been held that the warrant must sufficiently advise the defendant of the nature of the suit brought against him in the class of cases before us.

The substance of the warrant is that Mrs. Whittaker, on a certain day stated, was in a wagon driven by one Luttrell; that before the horses entered upon the track of the defendant company the team was slowed down, and both plaintiff and Luttrell looked and listened, and neither saw nor heard a train; that when the horses had gotten upon the track she saw one of defendant in error's trains coming around a curve about 500 feet distant and running very rapidly; that she urged the driver to speed up his team, but the train was coming so fast she feared they could not clear the track in time, and therefore she ran to the front of the wagon and jumped out on the ground, falling in the midst of some slag and other rough material on the side of the track, whereby she was injured.

There is a paragraph in the warrant averring that the defendant failed to sound the whistle or bell of the locomotive at the distance of one-fourth of a mile from the crossing, and at short intervals till the train had passed the crossing, pursuant to subsection 2 of section 1574 of Shannon's Code, and that this was one cause of the injury. This portion of the warrant, however, is no longer insisted upon because under subsection 1 of the same section, as held in Graves v. Railroad, 126 Tenn. 149, 148 S.W. 239, there was no duty incumbent on the railroad to comply with the provision referred to, because it did not appear in the evidence that the county warning ("Look out for the cars when you hear the whistle or bell") had been erected at the crossing pursuant to said section 1. The section provided that no engine driver should be compelled to blow the whistle or ring the bell at any crossing unless so designated.

There was another paragraph based on subsection 4 of section 1574. This subsection reads as follows:

"Every railroad company shall keep the engineer, fireman, or some other person, upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident."

It was held in Railroad v. Crews, 118 Tenn. 52, 62-64, 99 S.W. 368, that a count under subsection 2 was a count under the statute, but that a count under subsection 4 was a count under the common law, unless it were further charged that the injury was caused by contact with the moving train, or, in other words, unless the object on the track or road should be struck by the train. The reason given was that the provisions of subsection 2 were peculiar to the statute, while those of subsection 4 simply expressed common-law duties. That is to say, that in so far as concerned the provisions of subsection 4 the statute and the common law are concurrent, and that in order to bring a count under the statute the additional circumstance above referred to should be added. By the addition of such further matter the charge is brought within the scope of sections 1575 and 1576 of Shannon's Code, which read as follows:

"1575. 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.

1576. No railroad company that observes, or causes to be observed, these precautions shall be responsible for any damage done to person or property on its road. The proof that it has observed said precautions shall be upon the company." In order to bring these sections into operation, it must appear that the obstruction or object on the road was actually struck by the moving train. It has been hitherto deemed that this point was fully settled by the case of Holder v. R. Co., 11 Lea (79 Tenn.) 176. It is denied, however, by counsel in the present case, that the authority referred to settled the question. We need only refer to page 179 of the book in which the case is reported, where the question is stated thus:

"The question is whether the company shall be held liable for a loss to which, although the innocent

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