90 Tenn. 235 | Tenn. | 1891
By a collision on one of the streets of Memphis between a wagon driven by Lawo and a dummy-train of street-ears * he sustained such bodily injuries as have resulted in a judgment for $3,000 against plaintiff in error, who, as receiver, was operating the railway at the time.
Each of these propositions has been assigned as error.
Counsel have urged very forcefully that when, by legislative and municipal consent, a railway has been laid longitudinally upon -the streets of a city, that it is not practical to observe the requirements of the statute in reference to stopping the train whenever any person, animal, or other obstruction appears upon the road; that under such circumstances a railway is lawfully upon the street, and that to construe the statute as applicable when thus upon the streets will prevent the movement of trains, inasmuch as at all times persons and animals or other obstructions will be upon the road and within observation of the lookout upon the locomotive.
The statute was enacted for the purpose of preventing accidents. It prescribes precautions which, so far as they relate to the duty of watching the track and the duty of avoiding collision with persons or animals on the- track, are identical with the common law duty of diligence. Patton, Adm’r, v. Railway Co., 5 Pickle, 370; Railroad v. Pratt, 85 Tenn., 13.
If there he any strength in this argument, it would practically repeal the statute; for the same difficulty in literally observing it will be found to exist between country stations, the track in the day-time being very generally used as a walk-way. Practically, it is * unnecessary to stop the train when an object appears on the track save in a very few instances. The statute only requires it when necessary, and experience demonstrates that this necessity seldom arises. The track is generally cleared by signals, and no liability arises from failure to stop unless-such failure has resulted in an accident. What the common law would impose as ordinary care when necessary to avoid injury to the property of another, or an accident to a person upon the track, is not so difficult of accomplishment when embodied in legislation as to authorize a construction suspending it when the necessity for its observance is most necessary.
When a railroad is, longitudinally upon the streets of a city, the danger of accidents is obviously increased. Under such circumstances there should be a corresponding increase of diligence.
A train pulled by a small engine called a dummy, although exclusively engaged in carrying passengers, is a railroad within the meaning of the statute prescribing precautions to be observed by railroads. The evil intended to be remedied pertains as much to this sort of railway as to the ordinary railroad of commerce. In the case of Railway v. Doyle, 4 Pickle, 747, we had occasion to consider the resemblance and difference between the dummy-line and the commercial railway. Eor the reasons there stated, -we think the statutory precautions against railroad accidents apply to dummy-lines whether run within or without the limits of a municipality.
■ The third assignment of error is for the refusal of the Court 'to charge the jury that, under the ordinances of the city of Memphis, the blowing
Under this • authority, the municipality has enacted an ordinance regulating the running of trains through the city. It seems Avise and salutary in the main. Among other things prohibited is the blowing of the steam-whistle. In place of this, the bell is required to be rung and Avatchmen are required to be stationed at street-crossings. The ordinances of .-this municipality are of no authority where they conflict with the general law of the State. So far as this ordinance conflicts with the Code, § 1166, prescribing precautions against accidents, this ordinance is a nullity.
The authority given in the Act creating the taxing district, and Avhich Ave have quoted, gives
The author cites the case of Penn. R. R. Co. v. Hensil (70 Ind., 569, and 6 Am. & Eng. R. R. Cases, 79). This case seems to support the text. But on looking to the Code of Indiana, regulating the giving of signals at road - crossings, it is found that the Act provides “ that nothing therein contained shall be so construed as to interfere with any ordinance or by-law that has been or may be passed by any city or town regulating the management or running of engines or trains within such city or town.” Code of Indiana, 1881, §2178.
We have no such exception made in our statute. The other request refused had been substantially given, and the fifth assignment is overruled.
Judgment affirmed.