69 Tenn. 516 | Tenn. | 1878
delivered tbe opinion of the court.
Sufficient facts appear to show, that in the evening, between seven and eight o’clock, on- the 24th of October, 1874, the horse of plaintiff below was struck and killed by the engine of plaintiff in error-, about one mile from the town of Wartrace. Much conflict appears in the proof as to the condition of the railroad where it was done, and as to whether the railroad employees were in pursuance of their duty, as required by the statute, at the time of this collision.
The jury having passed upon all this, and having found against the railroad, we must assume — all other
But the charge of the court below is quite earnestly but respectfully attacked, and it therefore becomes necessary to state the facts' upon which that part of the charge is based which contains the supposed error.
The train was moving north at the time of the collision, and as we gather from the proof upon which the jury based their finding, the animal of Anthony was killed at the south end of a trestle about one hundred feet long. South of this trestle about two hundred and seventy-five or three hundred yards, is another trestle, and between the two, there is a cut in the road, and the road is also fenced on both sides between these two trestles, running up to and joining the south end of the first mentioned trestle.
It appears that there were two other horses killed at the same time of Anthony’s, belonging to other persons. The proof is ample to show, that for over two hundred yards of this space between the two trestles, as above described, tracks of three horses were found going north in the same direction of the train, having all the appearance of being fresh made by horses running at full speed. Some of these tracks were on the road bed between the rails, but most of them were on the side of the track and in what is called the ditch or water-way.
The plaintiff in error cites many decisions of this court to sustain his position, chief among which, he says, is the case of M. & C. R. R. Co. v. Smith, 9 Heis., 860. This case is relied upon to show that if the employees of the railroad are in observance of the requirements of the statutes, at the time of the accident,.
• But anticipating this reply, the counsel ingeniously argues, that, if the statutory precautions are observed at the time the animal makes its appearance on the track, no matter how close this is to the engine, and no matter how long before this it may have appeared in the ditch on the side of the track, the' company has complied with the law and is not liable. We cannot assent to this.
In the first place, the statute does not say when any person, animal, or other obstruction appears upon the road-bed, or track, but when such shall appear “upon the road,” The road, in contemplation of the statute, Qis not merely what is called strictly the roadbed or track, but it is the whole road, and it is the duty of the lookout to sweep the whole road with his vision, and we know as matter of fact it is quite easy for him to do this.
This case well illustrates the construction as here put upon the statute. The proof of both the engineer and fireman is, that they were on the lookout at the time of the collision, and that? the animal killed appeared on the track about fifteen feet before the engine, running about twelve or fifteen miles per hour, and that as soon as it so appeared' they immediately put themselves to work to, and did comply with the law.
Let the judgment be affirmed.