78 Tenn. 103 | Tenn. | 1882
delivered the opinion of the court.
This action is brought by the husband, to recover damages for injuries received by the Avife by reason of her horse being frightened by a train on defendant’s road.
The facts are, that plaintiff and his Avife Avere riding horseback from church. The road thejr chose to travel, after crossing the railroad, ran along near and parallel to- tile railroad for probably a mile or more. Plaintiff and Avife Avere riding along this road going east, having passed the crossing from a quarter to half a mile Avest of Avhere the public road crossed the railroad, Avhen a train approached from the Avest going east, the noise of Avliich frightened the Avifc’s horse, Avliich throw her, and injured her severely.
We need decide only one question presented in this case. His Honor, the circuit judge, held the failure to use the precautions required by sec. 1166-sub-sec. 3, Avould have entitled plaintiff to recover. This is the general theory of his charge, and if erroneous is conclusive of the result in this case.,
Sub-section 2, of the above section of the Code, provides for a sign to be placed • by the overseer of any public road at any crossing, marked, “Look out for the cars Avhen you hear the Avhistlo or bell.” No engine driver is required to blow the whistle or ring -the bell at any crossing unless it is so designated.
Sub-section 3 is: On approaching any crossing, so distinguished, the Avhistlo or bell of the locomotive
It seems clear this language imposes a duty on. the company in order to give warning to persons about to cross the road, or who may be in the act of crossing possibly, or had just passed over the road, but it does not apply to parties who are not about to cross the road, but are simply traveling alongside, as in this case, showing an evident purpose not to cross at all. If the parties had been injured in attempting to cross the road, either when near the track, before passing over, or immediately after crossing, but still as the result of failure to blow the whistle or ring the bell to warn them of the approach tc the crossing by the train, a right of action would have accrued. But where the parties are not endangered by crossing - the road, but only by reason of traveling parallel to it, the statute precautions can have no application.
What might be the rights and duties of the parties at common law, we need not determine on the facts of this case.
We only decide that the statutory regulations do not apply in favor of parties not. injured in crossing or attempting to cross a railroad, but simply by reason of the fact that they are casually riding along near and parallel to the railroad on a public road, with no purpose to cross it.
' Reverse the judgment and remand for another trial.
