106 Tenn. 374 | Tenn. | 1901
• This is an action for damages for personal injuries. There was a ■ trial before a jury in the Court below, and a verdict and judgment for $900, and the defendant railroad company has appealed and assigned errors.
lie went upon the tracks of the company to talk to the watchman in the employ of the company, whose duty it was to look after the safety of passengers and other persons at the depot and on the grounds of the company. The watchman was sitting on the steps of a caboose, which was standing on the tracks with several other cars attached, but ' to -which there was no engine attached.
Plaintiff was told that the train was late, and he engaged with the watchman in a conversation, and afterwards with another person who came up. In the meantime the watchmen had stepped to the telegraph office, only a lew feet away, to learn when- the train would arrive. The entire space between the tracks, and there were several at this place, was level, and the public generally, as well as passengers, were in the habit of going upon it when it was not being used for passing trains, and especially when awaiting the coming of trains. It was more or less crowded all the • time by persons standing upon or passing over it.
While standing near the caboose; and partially on the track behind it, an engine which ■ had
It appears that these cars which came down the track and jammed those standing upon it were cut loose from the switch engine and shunted down the track about one hundred yards, and, the track being, a down grade, they continued to roll down it of their own momentum until they struck the standing cars. One brakeman was upon them, and had set one of the brakes and started to the other when the accident occurred, but' he did not see the plaintiff, and his situation was such that he could not see him. The cars came down the track quite rapidly, and struck the standing ears with force and pushed them some distance down the track.
There are several objections made to the charge as given, and several to the failure to give several other instructions' as requested.
The Court laid down the rule of law applicable to the company’s duty to a ■ licensee that it was incumbent on it to keep the .walkways, plat
The insistence of the counsel for the company is that it is not required to anticipate the presence of a trespasser, nor to guard against injury to him unless his presence is known to the company, and it then failed to use proper care. While as a general proposition this may be correct, still it is not applicable in a case where cars are being moved over tracks and yards, and in localities which the public is accustomed to frequent, and where the road may reasonably expect that persons may be in the way of moving trains or cars at any time.
The mere fact that the company was ignorant of the presence of the party, whether licensee or trespasser, would not absolve the company from liability, but the controlling question is whether tion would depend largely upon the circumstances, the company was negligent or not, and that ques-place was used, and whether much or little frequented by third persons. If, for instance, the
It appears that the place where this accident occurred had been used as a passing or standing place for a number. of years, and was really necessary to be so used for the. accommodation of passengers and persons having business at the depot. It does not therefore present the case of a person needlessly and heedlessly placing himself in front or rear of a car likely to be moved, and injured because the railroad had no actual knowledge of his presence.
The Court, as bearing on this' feature of the case, charged that if plaintiff’s negligence was the-direct and proximate cause of the injury, he could not recover. The Court gave full instrue-
We think that the objections to the charge as given, and the requests as made, are faulty, in that' the proper distinction is not made that is raised by the facts of the- case, to wit: That the cars were being moved over premises which were frequented bv the public at any and all times, and there was a duty resting upon the company to keep a close watchout for persons on or near the track, and this duty made it incumbent on the company to use all reasonable care and diligence to see that its tracks were clear, and a mere failure to see persons on the track would not be sufficient.
We think the charge as given was fair and full, and properly presented the case to the jury, and there being no errors assigned except as to the charge, the judgment of the Court below is affirmed with costs.