79 Tenn. 205 | Tenn. | 1883
delivered the opinion of the court.
Action by Rieidmond against the railroad company for value of a horse killed by the company’s train. The verdict and judgment were in favor of Reidmond, and the company appealed in error.
The learned counsel of the plaintiff in error first insists that the circuit court should have sustained his motion to quash the writ. The record does show that such a motion was made and overruled. But it also shows that no cause was assigned or reason given for the motion.. This court has repeatedly held that such a motion cannot be entertained, for the obvious reason that if the defect relied- on were pointed out it might be remedied by amendment.
It appears from the argument submitted that the motion, as well as a subsequent motion in arrest of .judgment, was based on the ground that .the company was sued by a wrong name, its proper corporate name being the Louisville & Nashville Railroad Company. The record shows that the suit was commenced before a justice of the peace, the justice rendering a judgment against the company. The Louisville & Nashville Railroad Company probably appeared as the defendant and made defense, and at any rate that company certainly appealed from the judgment, the appeal bond reciting the judgment as- being against the Louisville, Nashville & Great Southern Railroad Company. This was a recognition of the identity of the two companies. A corporation may, like an individual, be known by several names, and can only
The case was tried upon an agreed statement of facts. The train had just started from a depot, and struck the animal sued for before it had gotten under full headway.- The engineer and fireman were both on the lookout and saw the animal. at least five hundred yards before it was struck. The animal was standing outside of the track, six or eight feet from the end of the cross ties, on the left of the advancing train, with its head from the track. In its front were open woods, with no ditch or waterway to prevent egress in that direction, while the track behind" was on a slight embankment. At the distance of four or five hundred yards from the animal, the alarm whistle was sounded, and continued to be sounded to
The trial judge, in his charge to . the jury, after giving the substance of the statute regulating the duties-of the railroad company, its agents and servants, “ when any person, animal or other obstruction appears upon the road” said: “The meaning of the statute is that when persons or animals appear on the track of the road as obstructions, so that if they do not move-
His Honor refused to give the following charge as-requested by the railroad company: “ If you find from proof that the plaintiff’s mare, when first seen by the engineer and fireman, was standing six or eight feet from the end of the cross ties, with her rear towards the ties, and that if she had remained there, she could not have been struck by defendant’s train; that the alarm whistle was sounded, brakes applied, and speed of train retarded at the distance of four of
His Honor was undoubtedly right in holding that an obstruction upon the road within, the meaning of the statute was something in a position to be struck or directly injured by the engine or train while moving on the rails, and that an animal not thus situated but merely on some part of the company’s right of way would not be such an obstruction: Holder v. Cincinnati, St. Louis & New Orleans Railroad Company, 11 Lea, 176. If the language of the learned judge, who delivers the opinion of the court in the case of the Nashville & Chattanaooga Railroad Company v. Anthony, 1 Lea, 516, was intended to give a broader meaning to the word “ road ” as used in the statute, it was inadvertent, and not required by the facts or essential to the point actually decided. On the contrary, the court expressly approved the charge of the trial judge in that case that “ strict application of the rule laid down by the statute would not' be required if the animal was not' on the bed.” The requirements of the statute
His Honor erred also in making his charge too general, and not directing it more pointedly to the facts
Reverse and remand.