delivered the opinion of the Court.
This action was brought by the defendant in error in the circuit court of Williamson county to recover damages for the alleged negligent killing of her husband, with the result that a verdict was rendered in favor of defendant in error for $5,000 damages, on which judgment was duly rendered. On appeal the court of civil appeals affirmed this judgment, and the case has reached us on the writ of certiorari.
The first question to be determined arises upon a construction of the declaration, in respect of whether it is a declaration under the common law, or under our statute prescribing certain precautions to be complied with by the railroad company.
The difference is important. When the right of action is based on the statute, the railway company *is exonerated if it can show that before striking an object upon the road it complied with all the statutory precautions. But under this cause of action the burden of proof is on the railway company to show such compliance, and its failure to safely carry this burden results in absolute liability; moreover, contributory negligence does not bar the action, but only mitigates the damages. On the contrary, where the action is based on the common law, the burden of proof is on the injured party to show, not only the infliction of the injury, but also the negligence or wrongdoing of the railway company, and in such an action the proximate contributory negligence of the party injured bars recovery.
It is recognized in our authorities that the two causes of action may exist in the same case, but it is required that they shall be presented in separate counts. The confusion referred to has arisen from the fact that some of the statutory precautions are identical with the requirements of the common law. We refer to those which require the railroad company to keep the engineer, fireman, or some other person upon the locomotive always upon the outlook ahead, and that, when any person, animal, or other obstruction appears upon the track, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident. These requirements having been repeatedly held in our cases to belong to the common law as well as to the statute, the difficulty is constantly presented to the minds of counsel as to whether a declaration is under the common law or under the statute. The court said in the Crews Case that, if the provisions above mentioned alone were referred to, there would not be enough to distinguish the action as a statutory one, that other common-law matters might be added and the whole declaration treated as
To further illustrate these principles we set out in full the declaration in the present case, viz.:
“Plaintiff, Mrs. Maggie McMillan, as administratrix of the estate of Fred Augustus T. McMillan, deceased, sues the defendant the Middle Tennessee Railroad Company, a corporation, for $50,000, as damages, by reason of the following facts:
“The defendant, the Middle Tennessee Railroad Company, heretofore, to wit, on the - day of ■-, 1913, was and now is a railroad corporation chartered under the laws of the State of Tennessee for the carriage of passengers and freight for hire, owning and operating a line of railroad running from the town of Franklin, in Williamson county, to Leatherwood, in Hickman county, upon which defendant ran and operated locomotives, steam engines, and railway cars.
£ ‘ On the date aforesaid plaintiff’s intestate, Fred Augustus T. McMillan, was traveling in a vehicle drawn by a horse along a public highway and a street of said town of Franklin known and designated as-street, across the railroad track of defendant company where said railroad track crosses said public highway ancl street, commonly known as the Boyd’s Mill turnpike, and within the corporate limits of the town of Franklin, said town of Franklin being a municipal corporation; and while upon said crossing, where plain*500 tiff’s said intestate liad the right to be, defendant company, its employees, agents, and servants, negligently, carelessly, wantonly, and recklessly ran npon and against said vehicle in which plaintiff’s intestate was riding with said locomotive, engine, and cars, and npon and against the body, head, neck, arms, and legs of plaintiff’s intestate, inflicting serious and fatal injuries, causing to plaintiff’s intestate great pain and suffering, and mental angush, fear, and fright, from the effect of which plaintiff’s intestate, after lingering and suffering as aforesaid, died, to wit, on the-day-, 1913.
‘ ‘ Plaintiff avers that at the time and place when and where plaintiff’s intestate appeared upon the railroad track of the defendant company, and when said engine and cars struck and injured and killed him as aforesaid, said engine and cars and plaintiff’s intestate were within the corporate limits of the town of Franklin, a town of-inhabitants, and duly incorporated, and said engine and cars were passing through said corporate limits, and said engine and cars had left the depot or station of said defendant company in Franklin, and were passing in a westerly' direction towards Leatherwood.
“Plaintiff further avers that the agents, employees, and servants of defendant company who then and there had control and management of said engine and cars were guilty of carelessness, mismanagement, and gross negligence in the premises as follows:
“ (1) Although said engine and cars were within the corporate limits of said town of Franklin, and had left*501 the depot or station of defendant company some minutes later than its schedule time, yet the employees, agents, and servants of defendant company carelessly and negligently failed to sound the hell or whistle on leaving said depot or station, and at intervals until said engine and cars reached said crossing, and until they had left the corporate limits.
“(2) When plaintiff’s intestate appeared upon the railroad track of defendant company at the crossing aforesaid, neither the engineer, fireman, nor any other person upon said locomotive was upon the lookout ahead; they did not sound the alarm whistle nor put down the brakes, and did not employ every possible means to stop the train and to prevent a collision.
“ (3) Plaintiff further avers that at the time of said collision said employees, agents, and servants of defendant company who then and there had the control and management of said locomotive, engine, and cars had inferior and defective engine and cars, with inferior and defective brakes, and other appliances, for the control- of said locomotive engine and cars, and the track of defendant company at the time and place aforesaid yras in defective condition, all of which was known , to defendant company.
“(4) Said crossing where said collision occurred was an exceedingly dangerous crossing, in that it was obscured by an embankment or cut made and constructed by defendant company, and by trees and other obstructions which obstructed the view of said crossing, and in approaching said crossing the employees, agents,*502 and servants of defendant company in charge of said train and cars did not give notice of their approach thereto, and did not take the necessary precautions to warn travelers along said highway and street of the approach of said engine and cars:
“Plaintiff further avers that plaintiff’s intestate was on the railroad track as aforesaid when he was struck, injured, and killed as aforesaid, as he had a right to be, without fault or-negligence on his part, and that he suffered the wrong, injuries, and death aforesaid by reason of the carelessness, mismanagement, and gross negligence of said employees, agents, and servants of defendant company in and about the premises, without fault or negligence on his part, and that said carelessness, mismanagement, and negligence was the proximate cause of his injuries and death, and that defendant company was then and there a railroad company within the purview of the law.
“Plaintiff’s intestate, Fred Augustus T. McMillan, left surviving him his widow, Mrs. Maggie McMillan, and the following named children, to-wit, ... all infants of tender years, for whose use and benefit this suit is brought.
“Plaintiff, Mrs. Maggie McMillan, was heretofore appointed administratrix of the estate of the said Fred Augustus T. McMillan by the county court of Williamson county, Tenn., which trust she still holds, and her letter of administration is here to the court shown.
“Plaintiff therefore avers that a right of action has accrued to her as such administratrix to have of and*503 from said defendant company the said snm of $50,000 above demanded, and therefore she snes and demands a jury to try this case.”
The whole of this declaration, down to section 4, is certainly under the statute. Section 4 is apparently under the common law, and probably supported by some intimations thrown out in one or more of our previous cases (Railroad Co. v. Smith, 9 Lea [77 Tenn.], 470; Chattanooga Rapid Transit Co. v. Walton,
Treating section 4 as stating a common-law cause of action, its insertion in the declaration made it demurra-ble for duplicity, and, if this objection had been made in the court below, no doubt, the proper correction would have been effected, either by striking out that section as surplusage, or by so striking and then adding another count covering this averment. With section 4 stricken out, and the paragraph immediately following, which paragraph was mere surplusage (Railroad v. Davis,
We have just said that the declaration, leaving out section 4 and the paragraph following it, is a good declaration under the statute. It is very full, and perhaps unnecessarily so, since, as held in Railroad v. Davis, supra, and Chattanooga Rapid Transit Co. v. Walton,
We shall now consider the first assignment of error, which is that the court of civil appeals erred in not reversing the judgment because the trial judge erroneously overruled the motion for peremptory instructions, and because that court refused to sustain the assignment that there was no evidence to support the verdict. This assignment must be overruled. It is not denied that defendant in error’s,,husband was killed while driving across the track. The statute makes it the duty of the railway company, on leaving a town or city, to sound the bell or whistle when the train starts and at short intervals until it has left the corporate limits. There is evidence to the effect that the whistle was sounded only once, and that was at a distance of from nine hundred to one thousand one hundred and thirty-seven feet from the place of the accident, and below a curve. The distance from the depot from
The second assignment of error is based on the action of the court of civil appeals in refusing to hold that the trial judge committed error in excluding the following evidence Avhich the plaintiff in error offered on the trial. This eAidence Aims as follows: The plaintiff in error offered in its defense the Avitness C. L. Williams, who testified that on the same day of the accident, in the afternoon, he asked the deceased how it happened that he drove on the track. Now to quote the Avitness:
“He said he didn’t Ioioav; said he wasn’t thinking about the railroad. Q. Did lie make any statement as to Avhat he Avas doing immediately before the accident? A. He said he didn’t know what he was doing, or was thinking about. Q. Did he make any other statement to you about how the accident occurred, or what effect it had upon him? A. Why, he said— As best I remember, I asked him Iioav come him to drive on the track; couldn’t he see the train? He said he wasn’t*506 thinking about the railroad; said it all seemed blank to him. ’ ’
Objection was made to this evidence by the defendant in error on the ground that it was hearsay, and hence not competent. This objection was sustained by the trial judge, and the testimony not permitted to go before the jury.
On the same objection made by defendant in error the trial judge ruled out the following evidence offered through the witness C. Gr. Bradley, who testified that he saw the deceased immediately after the accident:
“Q. At the time you heard Mr. McMillan (the deceased) make this statement two or three minutes after the accident, what did he say? A. Well, he said he didn’t hear the whistle and the train, and wasn’t paying any attention to the railroad. Q. Did he say anything else? A. Yes, sir; said he didn’t hear any one hollering or see any one waiving at him, or pay any attention to the railroad, or see the train in any way; if he had, he wouldn’t have drove on the track. Q. Did he say, if he had been paying any attention, of course, he wouldn’t have driven on the track? A. Yes, sir; he wouldn’t have driven .on the track if he had been paying any attention to the railroad or the train.”
On the same objection made by defendant -in error the trial judge ruled out the’ evidence of the witness D. G-. Buchanan offered by the plaintiff in error, viz. :■
“Mr. Buchanan, did you hear Mr. McMillan make any statement about how this accident occurred, or what he was doing after you had taken him over there ?*507 A. Yes, sir; I did. Q. What did he say? A. He made a remark to a lady there. She asked him did he see her -waving at him. He said no he didn’t; said he wasn’t paying any attention at all to her waving, or to the railroad, or the train. Q. Did he say anything about driving upon the track? A. He said if he had knew, had saw her, and been thinking of going across the track, he wouldn’t have drove upon the track. ’ ’
There can he no doubt that the action of the trial judge in ruling out this testimony on the ground stated was erroneous. The right of action in cases of this character is that of the deceased. Davidson-Benedict Co. v. Severson, 1 Cates (109 Tenn.), 613-623,
It is insisted in behalf of the defendant in error that, if the court can see that the evidence is incompetent on any other ground, the action of the trial judge will be upheld, although such other ground or objection was not offered. This is a mistaken view. Incompetency
The learned court of civil appeals declined to pass upon the validity of the objection made, but held the trial judge was justified in ruling out the evidence on the ground, along with other reasons stated:
That deceased was at the time the statements were made “in a comatose or stupified condition, and either wholly or partially unconscious, and did not fully comprehend what he was saying. It was for the trial judge,’.’ continued that court, “to determine as a preliminary question whether the statements were made by the deceased at a time and under such circumstances and while he was in such condition as authorized proof of them. ’ ’
The trial judge, however, did not undertake to determine this question, but acted only on the objection made by the defendant in error as to the hearsay character of the evidence. Furthermore, we are unable to
“Why he was partly conscious; he was a little bit stupified, but he was conscious when I saw him.”
The evidence should have gone to the jury. Its weight, no doubt, would have been affected by the fact that Mr. McMillan was very desperately injured, and was suffering great pain. We have no doubt that the evidence was competent; certainly it was not incompetent on the ground of being hearsay. Indeed, the counsel for defendant in error did not advance the view in the trial court that the mind of McMillan was in such condition that he did not know what he was saying.
It is insisted, however, in behalf of the defendant in error that there should be no reversal for the error mentioned, because the merits were reached; furthermore, because there was other evidence of the same kind as that embraced in the testimony ruled out. There was no other evidence presenting the negligence and inattention of the deceased in such a strong light as that contained in the testimony of the witnesses, Williams, Bradley, and Buchanan. Besides this, we are unable to say that a just result was reached with this evidence left out. It is true, in our view of the case on
In respect of the supposed common-law duty of the plaintiff in error, based on the averments of paragraph 4 of the declaration, the trial judge charged the jury, in substance, that if they found these averments true under the evidence, it was the duty of the plaintiff in error to exercise “a high degree of vigilance and caution, commensurate with the dangerous character of said crossing,” by employing every means at its command, “by ringing the bell and sounding the whistle” as its train approached the crossing to warn persons traveling upon the highway in the direction of the railway track with a purpose to cross it, etc. He also charged that on approaching such a crossing it was the duty of the railway company to employ every means at its command that would most effectually warn those persons about to cross the track. The crossing in question was within the corporate limits of the city of Franklin.
It is insisted by plaintiff in error that these instructions were erroneous because the statute covered the ground, and no other precautions could be required. And so thinks the court. The statutory provisions directing what shall be done when an object or obstruction appears on the track, of course, cannot be applied to the case of a warning required to prevent persons from actually entering on the track. But subsections
The foregoing matter covers assignments Nos. 8 and 9, and it is apparent they must be'overruled.
Assignment No. 10 is overruled, and 11 is sustained. The former complains that the trial judge instructed the jury simply that the contributory negligence of the deceased “can go only to the reduction of damages.” By this it was to be understood by the jury that such contributory negligence could not, under the statute, abate the action. However, the trial judge should have given the instruction the refusal of which is complained of in No. 11. This instruction plainly told them that it was their duty to mitigate or lessen the damages if they should find that deceased was guilty of contributory negligence, and that they should measure this reduction of damages in proportion to the degree of such contributory negligence, whether slight or gross.
What has been said in disposing of assignments Nos. 8 and 9 renders it unnecessary for ns to consider assignments Nos. 13, 15, 24, and 25, since all of these either directly or incidentally affect the supposed common-law feature of the case, which is now eliminated, and, no doubt, will be discarded on the new trial.
Assignment No. 18 is overruled on the same grounds.
Assignments Nos. 20, 21, and 22 are overruled, on the ground that the substance of the request for instruction to the jury contained in each was sufficiently given by another instruction which the trial judge gave at the instance of the plaintiff in error.
Assignment No. 23.complains of the refusal of the trial judge to give in charge the following instruction offered by the plaintiff in error, viz.:
“If the deceased, Fred McMillan, was familiar with this Boyd’s Mill crossing, and had been crossing it daily for several months, and knew the situation, and, notwithstanding this, he entered upon this railroad track without stopping to look or listen, and without paying any attention whatever to the railroad, without noticing it and without thinking about the railroad, or train might be approaching, and without taking any precaution himself to prevent an accident, he would be guilty of gross negligence, and such negligence should*515 be taken into consideration by yon, and sbonld mitigate any recovery which plaintiff might otherwise be entitled to.”
There was evidence on which to base the instruction, and it should have been given but for the nse of the word “gross” therein. While it is trne that the dnty to stop, look, and listen is not a positive dnty in law applicable hnder all circumstances, and it is furthermore trne that in general it must be left to the jury to say whether under the circumstances of the given case the party was negligent in failing to stop, look, and listen (Railroad v. Dies,
Assignments Nos. 26 and 27 are overruled. In order to contradict a witness by evidence of what he said out of court to other persons on the same subject contradictory of what he afterwards testified in court, it is essential that the witness to be impeached shall be first asked whether he made such statements at a time and place fixed, and to a person or persons named, and the
The twenty-ninth assignment is addressed to the ex-cessiveness of the verdict. Since the judgment must be. reversed, and the case remanded for a new trial on other grounds, we do not deem it proper to consider this subject.
Reverse and remand. The defendant in error will pay the costs of the appeal.