73 Tenn. 119 | Tenn. | 1880
delivered the opinion of the court.
'In this action by the appellee against the railroad company for injury to his person by a passing train, the charge of the circuit judge, to the jury was, in substance, the same as the charge in the Railroad Co. v. Scales, 2 Lea, 688, and was held to be erroneous for similar reasons. A petition for a rehearing has been presented by the appellee.
The first ground taken to sustain the application is, that the decision in the Railroad v. Scales turned upon the construction of the Code, sec. 1169, which is confined to the killing or injury of stock, and has no application to those provisions of the Code which regulate the liability 'of railroad companies for injuries to persons. It is true that the particular case was for damages to stock, and the opinion necessarily considered the effect of sec. 1169 on the company’s liability. It had been argued that this section was more stringent than the sections which preceded it on the same subject, and disclosed a clear intent on the part of the Legislature to make the requirements of the statute more imperative in the case of injury to stock than in the case of injury to the person. But this court said that sec. 1169 must be construed as in pari materia with the other sections, and . that the language of that section, when taken as part of the
Another position assumed is, that the objectionable part of the charge was immaterial, because of the
The argument is, that the engineer saw the appellee in time to use the statutory precautions without doing so, and therefore there is no room for the rule of impossibility. The statute is, “when any person, animal or other obstruction appears upon the road,” then the whistle shall be sounded, the brakes put down,
A rehearing is refused.