129 Tenn. 44 | Tenn. | 1913
delivered the opinion of the Court.
This suit was begun in the circuit court, and was there prosecuted to judgment in favor of King for the sum of $2500 and costs. It was then taken to the court of civil appeals by the railroad company. That court reversed and remanded the cause for a new trial; and, based on that judgment, two petitions for cer-tiorari have been filed in this court — one by King, insisting that the judgment of the trial court should have been affirmed; and one by the railroad company, insisting that both the trial court and the court of civil appeals were in error in not holding that it was entitled to a directed verdict, which was seasonably requested by it at the close of the evidence in chief offered by King, and again at the close of all evidence in the trial of the case in the circuit court.
By the evidence of King, and otherwise, it appears that, at the time he was injured, he was living with Mr. Smith, who resided about one mile from Eagans-ville, a flag station on the line of the railroad company, and in company with Henry Wood, colored (King being also colored), he went to Eagansville to take passage on the passenger train bound for Lebanon, where he expected to attend a supper; that he had often prior to that time taken passage on that train at Eagansville, his habit being to go to Labanon from that station every two weeks; that he knew how to get on the train, which way was by flagging the train by means of lighting a piece of paper, which was done on the night he was injured, the flagging being done on that night by Henry Wood, who stood in the middle of the track and lighted the paper; that on the former occasions the train had always stopped at the station, but on the night he was injured it ran beyond the station about 100 yards and stopped. He saw it when it stopped, knew it had stepped, and, instead of waiting where he was until the train came back, he concluded that it was
King testifies that the point where he was struck by the train was “mighty nigh 100 yards” from the flag station. He admits that he made no outcry to attract
The failure of King and Wood to make known to the employees in charge of the train the injuries which King had received is entirely unexplained upon this record. The explanation which King offers is that he was in misery. No such explanation can he offered for Wood, and so far as King is concerned, it is an explanation which does not explain. Their apparent concealment of their presence, and of the injury which King had sustained, at a time when he was manifestly in desperate need of immediate surgical attention, brings seriously into question the truth of their entire evidence in the cause.
The flagman on the train testifies in substance that he was on the rear end of the rear car as the train was
His evidence is corroborated on most of these points-by other employees in charge of the train, but the evidence of these witnesses was contradicted by evidence introduced on behalf of King; but it is undisputed in the record that the train was backing very slowly toward the station, the rate of speed being not more than, three or four miles an hour. King says “it was eased along.”
The first point for decision under these facts is whether the rights of the parties to this suit should be determined under sections 1166,1167,1168, of the Code of 1858, now appearing as sections 1574, 1575, 1576,.
We think the statutes above mentioned do not apply in the present case.
In Patton v. Railroad Co., 89 Tenn. (5 Pickle), 372, 15 S. W., 919, 12 L. R. A., 184, where the person injured was walking upon the track, and was overtaken by a train of freight ears, and stepped aside until the train passed, when he returned to the track and resumed his journey in the rear of the train which had passed him, and was overtaken and killed by some freight cars which had belonged to the train which had just passed him, but had become detached therefrom, and were following downgrade at the time of the injury, this court, speaking through Judge Lurton, held that the statutes above mentioned did not apply, saying: “The case provided for by the statute is that of a train pulled by a locomotive, and the precautions are those required to be observed by those servants upon the engine, and have regard to obstacles on the track in front of or ahead of the engine,” etc.
In Railroad Co. v. Rush, 83 Tenn. (15 Lea), 150, construing these statutes, it was pointed out by Judge Cooper, speaking for this court, that in view of the stringent terms of the statutes and the manifest object of the legislature the court had not extended their provisions to every case which might be embraced in their general language; and it was there said that the statutes were intended for the benefit of the general pub-
The ease of Railroad v. Pugh, 95 Tenn. (11 Pickle), 421, 32 S. W., 311, is very much in point. There the plaintiff relied in his declaration upon an averment that he was struck and seriously injured by certain detached cars of the defendant while he was walking between the sidetrack and depot platform at Charleston, and that the collision and injury resulted from the making of a running switch, by which the cars were driven by the depot at an excessive rate of speed, having no one on the lookout ahead. This eourt, in disposing of that case, held that the statutory precautions did not apply, in cases where employees of a railroad company were engaged in the distribution of cars “in the ‘making up’ of trains, and in other necessary switching in and upon its yards, depot grounds, and sidetracks;” the reason given for the ruling being that “it is not possible, in such cases, to have the engine always in front of the moving portions of the train, yet the doing of the things indicated is absolutely indispensable to the efficient operation of railroads.”
King had no legal right to suppose that the company would accept him as a passenger at a point 150 yards beyond the platform, where he says the train stopped in obedience to his signal; nor had he the right
The movement of the train backward from the point where it first stopped was, within the meaning of Railroad v. Pugh, supra, a switching in and upon its depot grounds, and in the execution of that movement, and in the injury which King suffered, the common law, and not the statutes, measure the rights of the parties. It is clear that the legislature, in the passage of the statutes, never intended them to apply to a case like this. In proper cases for their application the statutes are wise and beneficient, hut to apply them here would work a gross and manifest miscarriage of justice.
Turning now to a consideration of the rights of the parties under the principles of the common law, we hold that under the facts of this record the gross negligence of King was the proximate cause of the injuries which he received. Had he remained at the flag station, as it was right and his duty to do, his signal would have been obeyed, and he would have been able to board the train without injury. We have already observed that he had no right to suppose or act upon the ■supposition that the company would receive him as a passenger at the point where the train first stopped.
His act in abandoning a place of safety, walking down to meet an approaching train, without heed or care apparently of the consequences, can ouly be char-
It results that the company was entitled to the peremptory instruction which it requested at the trial of this cause, and therefore the petition for certiorari filed by King is denied. The petition of the company is granted, the judgment of the court of civil appeals is reversed, and the-suit dismissed at King’s cost.