103 Tenn. 266 | Tenn. | 1899
James Artenberry, while attempting to cross the track of the Southern Railway Company, was struck and killed by one of its trains. His widow brought this action to recover damages. The company demurred to the evidence, the Court sustained the demurrer, and she appealed in error.
The substance of the plaintiff’s insistence in this Court is that defendant’s demurrer to the evidence is insufficient in form, and that the evidence shows a good cause of action; and, hence, that for either- and both of these reasons, the judgment of the Court below should have been in her favor.
First. — The demurrer is clearly sufficient in form. It sets out in written detail all the testimony introduced by the plaintiff, admits that it and all proper and legal deductions and inferences to be drawn therefrom are true; avers that they present no legal ground for recovery against defendant, and prays that the ' plaintiff join therein, and that the Court give judgment accordingly. More than this is not required. Hopkins v. Railroad, 96 Tenn., 409; Summers v. Railroad, Ib., 459; Corbett v. Smith & Co., 101 Tenn., 368.
It is not essential, as contended by the plaintiff, that a demurrer to evidence should “set out
Second. — At the time of the collision in which the deceased lost his life he was driving a spike team, consisting of a mule and a yoke of oxen, over the defendant’s track at a public crossing near the corporate line of the town of Green eville. He had started from the town to his home in the country, and when one of the defendant’s incoming trains- sounded its whistle at “the mile post,” a few hundred yards from the crossing, he, being about forty or fifty yards from the crossing, rose to his feet in the wagon and whipped his team vigorously with a view of crossing the track before the train should reach that point. Two or three bystanders called to him and urged him not to make the hazardous effort. He gave no heed to ■ the friendly warning, but seemed to urge his team the more; and when the team had passed over and the wagon „ was on the track the engine collided with the wagon and knocked the deceased about fifty feet away and caused his immediate death.
These facts show great recklessness on the part of the plaintiff’s husband, and fully justify the
Third. — But other proof produced by the plaintiff shows that she has no cause of action.
There was a deep cut on one side of the railroad, which obstructed the view of the deceased and of the fireman and engineer to such an extent, that they could ' not see him and he could not see the train until he was within a few feet of the crossing. He suddenly emerged from this cut with his team in a trot, and went at once upon the track. The alarm whistle was sounded and brakes were put on as soon as the head of the team appeared on the track, but the train was then so near the crossing that it could not be stopped in time to prevent the collision. The alarm whistle was sounded twice in rapid succession, the second blast being unfinished when the' engine struck the wagon, and the application of brakes was so prompt and effective as to stop the train in ■ a short distance after passing over the crossing.
These facts disclose a compliance on the part of the' defendant with tfie statutory requirements
It is further shown by the plaintiff’s proof that the defendant, up to the time of the accident, had . complied with the other statutory requirement (Code, Sec. 1166, Subsec. 3; M. & V., Sec. 1298, Subsec. 3; Shannon, Sec. 1574, Subsec. 3), to sound the bell or whistle on approaching a town or city when . the train is at a distance of one 'mile therefrom, and at short intervals until it reaches the depot or station. Several witnesses say posi-r tively that the whistle was blown at “the mile post,” and they and others relate facts and circumstances from which it is natural and reasonable to' infer that the bpll was thereafter sounded
It follows that the Circuit Judge rightly sustained the demurrer to the evidence, and the judgment dismissing the suit is affirmed.