138 Tenn. 562 | Tenn. | 1917
delivered the opinion of the Court.
This was an action brought in the circuit court of Hamilton county to recover damages for injuries inflicted on the defendant in error by the engine of the plaintiff in error. There was a verdict of $10;000 in favor of the defendant in error, and judgment thereon. After the plaintiff in error’s motion for a new trial had been overruled, it appealed to the court of civil appeals. There the judgment was reversed and the
The declaration, as originally drawn, consisted of only one count. This averred, omitting the formal parts, that, on the-day of November, 1913, near East End avenue, in the city of Chattanooga, “defendant” (plaintiff in error) “unlawfully, wrongfully, and negligently ran one of its engines into and against and over plaintiff” (defendant in error), “whereby and on account of which, the plaintiff was bruised and mangled,” etc., describing the nature of his injuries, and averring great pain of body and mind.
Subsequently, by leave of the court, this count was amended so as to specify other special damages, among them the following:
“Plaintiff suffered so much from his amputated arm that the doctors gave him morphine and other drugs in an effort to lessen the pain. As a result of such treatment plaintiff has become addicted to the drug habit and is now using a large quantity of morphine each day. ’ ’
“Said collision occurred within the corporate limits of the city of Chattanooga, a municipal corporation organized under the laws of Tennessee. At the time there was in force an ordiance of said city of Chattanooga providing that ‘any engineer or other person in chajrge of an engine with or without cars attached who shall run the same through any part of the city at a greater rate of speed than six miles an hour shall, on conviction, he fined not less than $10, nor more than $50, provided that from and south of Montgomery avenue and from and southeast of King street, trains and cars may move and he run at a rate of speed not exceeding thirteen miles per hour.’ The point where plaintiff was struck, as aforesaid, is southeast of King street in said city, and within the district where trains and cars may lawfully move at the rate of speed not in excess of thirteen miles per hour. Plaintiff avers that the said engine, at the time’it struck him, was running at a high and reckless rate of speed, to wit, more than thirteen -miles per hour, and in violation of the said ordinance of the city of Chattanooga aforesaid. The plaintiff avers that the unlawful speed of such engine, in violation of said city ordinance, was the proximate cause of said collision, and his resulting injury.”
The plaintiff in error interposed a demurrer to so much of the declaration as charged addiction to the morphine habit, on the ground that this habit was not the proximate result of the injury, as appeared from
That part of the declaration which alleged the violation of the ordinance was demurred to on the ground that the ordinance was directed only against an engineer, or other person in charge of an engine, and made it a misdemeanor for such persons to propel the engine at a greater speed then that mentioned therein; that it had no application to any other person or persons — that is, that it was not directed in terms against plaintiff in error or any railroad company. Another ground of demurrer was that the ordinance applied alone to public streets and other public places, and not to railroad yards, and it was not alleged that the accident happened in any of the places to which the ordinance applied.
Both grounds of demurrer were overruled. We shall presently consider these matters in connection with other questions which arose on the trial.
The evidence, so far as necessary to- he stated, was, in substance, as follows:
The plaintiff in error is a terminal company located in Chattanooga, and employed by several 'of the rail
The defendent in error, when he received the injury, was standing on the track of the Nashville, Chattanooga & 'St. Louis Railway Company in company with one Angel. Defendent in error says that he looked along the track at the time he entered upon it, but did not afterwards look, nor does he testify that he listened for an engine or train. The coming of the engine was discovered by Angel, who saved himself by a sudden movement, at the same time warning the defendent in error. The latter jumped, but the engine struck him before he could get out of its sweep. There were several persons on' the engine besides the engineer and fireman, these other persons constituting a part of the crew that attended the engine. No one on the engine discovered the defendant in error, or knew that he had been injured. So the engine proceeded westward and returned with the sleeper. Knowledge of the injury being then communicated to those in control of the engine, the defendant in error was removed from the track and transported to a safe place on the sleeper.
There was evidence introduced in behalf of the defendant in error, that the storm curtains were down, and no one was seen inside the engine; that no whistle was blown, no bell rung, and no attempt to stop the engine that inflicted the injury. All the witnesses except one testify that there was a light on the rear of the engine ; that one testified that he did not see any, but does not positively deny that there was one. The witnesses for the defendant in error testify that the headlight was very dim, that it was an oil light, and badly smok
The accident occurred within the station limits of the Nashville, Chattanooga & St. Louis Railway Company at a point remote from any street of the city which crossed the track. There was no street between East End avenue and the Union Depot, except Market street, and King street, which were distant from each other only one block, and both of them far from the place of the injury. The accident occurred a considerable distance east of both of these streets.
The first'question to be determined is whether there should have been a peremptory instruction in compliance with a motion to that effect made in the trial court by the plaintiff in error.
The declaration, as drawn, in the first count, is clearly under the statute, invoking the application of the precautions prescribed by the statute for the prevention of accidents on railways. Similar language has been so construed in several cases. Railroad v. Binkley, 127 Tenn., 77, 80, 81, 153 S. W., 59; Chattanooga
Plaintiff in error was operating on the track of the Nashville, Chattanooga & St. Louis Railway Company, in the employment of that company, and would have the same rights as that company would have if it had itself been engaged in transferring the sleeping car in question from its own railroad to that of the Southern Railway Campany. If the Nashville, Chattanooga & St. Louis Railway Company had been engaged in the same operation, and the defendant in error had been its servant, the statute would not apply likewise for that reason. Railroad Co. v. Holland, 117 Tenn., 257, 96 S. W., 758, and other cases cited in Railroad v. Finley, 122 Tenn., at page 134, 118 S. W., 692, 18 Ann. Cas., 1141. But the defendant in error was not the servant of the Nashville, Chattanooga & St. Louis Railway Company, and was not on that road hy authority of that company, and therefore must he considered as
Even under the common law it would be the duty of a railway company’s servants on the engine to-keep a lookout ahead, and also to have reasonable appliances, including a headlight of reasonable efficiency. It would also be the duty of such servants, on the appearance of any obstruction on the track, to use their utmost endeavors to prevent a collision. It would also be their duty to see what could be seen by a person of good eyesight, with the aid of a proper headlight, or a proper light on the back of the engine in case it were engaged in running backwards: Horne v. Railroad, 1
So in the Todd Case a man who stood upon a railway track, at a crossing, for a considerable time without looking or listening, although in broad daylight, instead of at night, as in the case before us, was held to be guilty of such contributory negligence as that he could not recover. See, also, Railroad Co. v. Parks, supra. Now, in the present case, the negligence of the defendant in error was even grosser. He was on a track in the station limits of the railway company at night
But before going into this matter it is proper that we dispose of the grounds of demurrer assigned to this count of the declaration. The first ground is that the ordinance is addressed solely to the engineer, and therefore not to the company. There is nothing in this point. It was settled, in effect, adversely to plaintiff in error’s contention in the case of Railroad Co. v. Haynes, 112 Tenn., 712, 81 S. W., 374. In that case the Memphis ordinance was addressed to “conductors, drivers etc,” but was held to apply to the company ‘itself. To the same effect, see Grube v. Missouri Pacific R. Co., 98 Mo., 330, 11 S. W., 736, 4 L. R. A., 776, 14 Am. St. Rep., 645, wherein an ordinance similarly addressed was applied to the company. The second ground of demurrer we think is equally unfounded. There is nothing in the language of the ordinance indicating a purpose to exclude the railway tracks in question, and other tracks in that locality. On the contrary, there are two or three material considerations on which a diverse inference may be safely based. These are: Firstly, the fact that the tracks in question, and other railway tracks lie immediately southeast of King street, according to the map “Exhibit D” fur
Now returning to an examination of the effect of the ordinance, on the rights of the parties, in the light of the evidence:
There was evidence of a violation of the ordinance, and evidence to th.e contrary. Under the rule that when considering a motion for peremtory instructions that view must be taken which is most favorable to the party against whom the motion is made, we must hold that the ordinance was violated by the plaintiff in error; that the engine in question was at the time of the injury running in excess of thirteen miles per hour, and hence was violating the ordinance; therefore that the plaintiff in error, in so running the engine, through its servants, was guilty of negligence per se. The leading case in our state on this subject is Queen v. Dayton Coal & Iron Co., 95 Tenn., 458, 32 S. W., 460, 30 L. R. A., 82, 49 Am. St. Rep., 935. This case has been follow
Before the final disposition of the ease, we shall dispose of. an important point of practice which has arisen herein, and has been discussed in the briefs of counsel.
The learned,court of civil appeals, as indicated in the beginning of this opinion, reached a different conclusion from that which we have announced. It was there held that the statutory precautions applied, that the plaintiff in error had violated these provisions and was therefore absolutely bound, that the cause should be remanded only for the assessment of dam