105 Tenn. 415 | Tenn. | 1900
This is an action for damages for personal injuries. There was a trial before the
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 adid 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 v. Davis, 104 Tenn., 444, that such allegation is a sufficient statement of a cause of action.
See, also, E. Tenn. Co. v. Pratt, 1 Pickle, 9, 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.,
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, § 1574, Subsecs. 1, 2, 3, and 4.
It is further provided that every railroad company that fails to observe these precautions (meaning all of these, Railroad 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, § 1575. And if the precautions are observed, it shall not be liable. § 1576. And the proof that it has observed these precautions shall be upon the company. § 1576. And by § 1577 it is further provided that, even in cases of kill
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. L. & N. R. R. v. Burke., 6 Cold., 45-50; L. & N. R. R. v. Connor, 9 Heis., 26; Hill v. L. & N. R. R. Co., 9 Heis., 827; M. & C. R. R. v. Smith, 9 Heis., 863, 864; N. & C. R. R. v. Thomas, 5 Heis., 266; Railway Cos. v. Foster, 4 Pickle, 678.
So strict is the rule that contributory negligence will not excuse their observance, be it ever so gross, but will only go in mitigation of damages. L. & N. R. R. v. Burke, 6 Cold., 45-51; N. & C. R. R. v. Smith, 6 Heis., 177; Railroad v. Walker, 11 Heis., 385; Simpson v. Railroad, 5 Lea, 456; Railway Cos. v. Foster, 4 Pickle, 675-680; L. & N. R. R. Co. v. Connor, 2 Bax., 382.
But when the impossibility and unavoidableness arise out of the default of the road, the road will still be liable. Nash. & Chatt. Ry. v. Anthony, 1 Lea, 516; Railway 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. E. T. & Ga. R. R. v. St. John, 5 Sneed, 524-530.
And speculation as to the effect will not be indulged by the Court nor permitted by the road, but the statute demands absolute obedience whether the precautions seem necessary or not. Hill v. L. & N. R. R., 9 Heis., 827; Railway Cos. v. Foster, 4 Pick., 679.
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
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. M. & C. R. R. Co. v. Smith, 9 Heis., 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. M. & C. R. R. Co. v. Smith, 9 Heis., 864; and this rule applies to dummy lines, such as that operated by appellant, whether in or out of the city. Katzenberger v. Lawo, 6 Pick., 239.
As to the burden of proof being upon the railroad, the statute is very plain and emphatic. Tt says: “The proof that it has observed said precautions shall be upon the company. Shannon, § 1516. And this means all the precautions enumerated in the r statute. Railroad 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;
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 do only by showing a compliance with the statutory precautions, and when this is attempted the plaintiff may show otherwise, and also rebut the testimony of defendant company as 'to the accident itself. L. & N. R. R. Co. v. Parker, 12 Heis., 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 is 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,’ its machinery and equipments, are according to the present state of the art, or in reasonable conformity thereto. L. & N. R. R.
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 night time, the engine must be supplied with the best headlight the state of the art affords. N. & C. R. R. Co. v. Smith, Adm'r., 6 Heis., 177; N. & C. R R. v. Nowlin, 1 Lea, 525; L. & N. R. R. v. Stone, 7 Heis., 471; Mem. City Ry. Co. v. Logue, 13 Lea, 35. And it must be shown that the brakes were put down. M. & C. R. R. v. Smith, 9 Heis., 864.
So when a house is burned by sparks it is incumbent on the road to show that the engine and fire apparatus was properly constructed and in good condition. Simpson v. The Railroad, 5 Lea, 456; Railroad v. Stewart, 13 Lea, 437.
A cogent reason for holding that a general allegation of negligent injury is sufficient to let in proof of statutory negligence, is that the plaintiff cannot be presumed .to know, or required to find out, the exact or specific cause of the negligence of the road, nor in what particular it consisted, whether the machinery was defective or the employee was careless, or in what feature the negligence consisted; while the railroad must, from the
While this is the rule as to the burden of the proof, and the necessity of the road to show its machinery, roadbed, and equipment in proper condition, we do not understand or mean to say that it is incumbent on the company to take up every part and parcel of its train, item by item, and in all its details, and show them all to be in proper condition and up to the art, and that in the first instance a general statement made by a competent party that the machinery and equipment and roadbed was in proper condition may not be sufficient if unchallenged. Still, that does not preclude the plaintiff from challenging the correctness of the statements as to any of the items, and when so challenged it is the duty of the road, and the onus is on it, to show all that the statute requires.
Nor arc we called upon to state all that is embraced in the requirement that “every possible means shall be employed to stop the train and prevent an accident.” This requirement must be read and construed in view of the facts, circumstances, and surroundings of each particular case.
Here, the specific objection is not that the onus. or burden of proof was placed on the road to
Under the first count, charging negligence generally, it was clearly competent to show such negligence as a defective brake, even though in other counts of the declaration other specific acts of negligence may have been enumerated, and that may have been omitted. There can be no doubt but that under the statute it is one of its requirements - that the brakes shall be put down, and it would be but a mockery to hold that it must be shown that the brakes were put down, but could not be shown that they were in defective condition or entirely missing. The statute clearly requires not only that the train be fully and properly equipped with proper machinery, including specially brakes, but also that the company show that they are in proper condition, and promptly and properly applied, and all these things it is incumbent on the road to show in order to establish a compliance with the statute.
It was not error in this connection to charge that if the brakes and ^ other apparatus were defective, or the road failed to observe any other statutory requirement, its liability would be absolute, even though the plaintiff might not be able to show that the accident or injury was caused by the specific defect or default proven.
The question we are now considering is not
It is said there is no evidence to support the verdict. We think there is evidence from which the jury would have been warranted in finding that the brakes, upon the train were defective, and some eifidence that a stop might have been made before the injury occurred if they had been in proper condition. The testimony as to the condition of the brakes is meager, and though it is made by the employees of the road on cross-examination, it is not so satisfactory as to good condition as to convince the jury that there were no defects. It appears that the plaintiff was driving his milk wagon up to this crossing, and that when within about fifteen feet of it he checked his team — some of the witnesses say stopped — and looked in the direction from which the train was coming, and saw no train, and only heard the alarm whistle at the time he was upon the track. The jury, from the proof, might reasonably have
It is said the verdict and judgment are excessive. The plaintiff, it is evident, received a very violent blow; he was knocked more than 100 feet by an engine going at a high rate of speed; he was rendered unconsicious for some time, suffered quite a cut upon his head, his nose was mashed, and he was bruised and the skin broken in many places. One side of his face appears to be paralyzed, as the result of the accident. He was confined to his bed' for some three months, and the actual expenses for services, medical and otherwise, was about $200. He says that he feels that he is permanently injured and unfit for labor. It appears that he was a robust and
In this connection it is said that he was guilty of contributory negligence which should have abated his recovery. Whether the jury did abate anything upon this view of the case we cannot know. The evidence is conflicting as to how far the plaintiff could have seen the approaching train. Some experiments were made by other persons to determine this question after the accident, but they led to no very Satisfactory results.
Upon a review of the whole case we think there is no error in the record, and the judgment of the Court below is affirmed with costs.