104 Tenn. 442 | Tenn. | 1900
Suit by tbe widow of T. W. Davis, deceased, to recover damages for tbe alleged wrongful killing of her husband by the railroad company. Yerdict and judgment in favor of plaintiff for $3,000. Company appealed, ' and has assigned errors.
The deceased lived in' the town of South Fulton, Tenn., and at the time of the accident had started up town, walking along or near the track of the Illinois Central Railroad Company, and was killed by a north-bound passenger train. At the time of the accident two freight trains were standing on either side of the main line, both headed south, and they had taken these position? in order to permit the passenger train, which was due at 12 o’clock midday, to pass along the main line north.
The theory of the plaintiff is that at the time of the accident deceased was walking along the main line and could have been plainly seen by the engineer and fireman of the north-bound passenger train for at least a half or three-quarters of a mile, and that no danger signal was given or other precaution taken until the proximity to deceased was so close that it was impossible to stop the train in time to prevent the accident.
It was further ■ claimed that the company had also failed to ring the bell or sound the whistle within one mile of the’ town of Fulton.
Both theories, each of which was supported by evidence, were submitted to the jury, and they have resolved the issues in favor of the plaintiff.
The first assignment of error is .that the Court erred in not sustaining defendant’s demurrer to plaintiff’s declaration. The point of tbe demurrer is that the declaration stated no cause of action. The gravamen of the several counts of the declaration is that defendant company had “wrongfully, carelessly, and negligently run its cars and engine upon and against the deceased, thereby causing
1. It was not alleged that deceased was without fault and that he exercised reasonable care and caution to avoid the injury.
2. The facts constituting the negligence are not alleged, but onlv inferences and conclusions, and that defendant had thereby no notice of the facts it was expected to meet.
In the recent case of Telephone Company v. Cook, 103 Tenn., 730, the plaintiff sued to recover damages for personal injuries sustained in consequence of a collision with a telephone pole erected on a turnpike. The specifications- of negligence set out . in the declaration were, viz.: “That defendant carelessly, willfully, negligently, and unlawfully erected a large pole, firmly set to the ground, on the chartered right of way of the Harpeth turnpike, a public thoroughfare in Williamson County.55 It was held, on demurrer, that the averments of negligence were too general and stated no cause of' action. The simple averment that the pole of plaintiff in error was placed within the chartered right of' way of the Har-peth Turnpike Company, although it was stated that it was done wrongfully, carelessly, negligently, and unlawfully, does not constitute a cause of
The case of Cotton Oil Company v. Shamblin, 101 Tenn., 264, was an action to recover damages for the negligent killing of plaintiff’s intestate. The only specification of the declaration was that “defendant- wrongfully and negligently killed David L. Shamblen,” etc. On demurrer the declaration was held fatally defective. The Court quoted with approval the case of Madden v. Post Royal Railroad Company, 35 S. C., 381, in which it was said, viz.: “Negligence being a mixed question of law and fact, it is not sufficient to allege in general terms that • an injury has been sustained by reason of the negligence of the defendant, but- the plaintiff must go on and allege the facts constituting such negligence.”
We hold this declaration to be sufficient under the authority of the last case cited.
The second ground of demurrer is that it is not ■ alleged that the injury was sustained by the plaintiff without fault or negligence on his part. We considered this question in Stewart v. Nashville, 12 Pickle. 55, and held that contributory negligence being a matter of defense, it was not necessary that plaintiff should allege or prove that he was free from fault.
It suffices to say, in answer to this assignment, that the statute applies to all incorporated towns in this State. South Pulton was an incorporated town, and the statute must apply, regardless of where its depot or station is situated. It is true the statute has no extraterritorial effect, but so far as' it is applicable in this State it must be enforced.
The twelfth assignment .is that the Court erred in refusing defendant’s request, to the effect that if the jury found that the bell or whistle on said train was sounded at short intervals for a distance of one-half or three-quarters of a mile from the corporate limits of South Pulton in the State of Tennessee, that this was a substantial compliance with the statute.
We think the instruction was properly refused, for the reason the statute requires that the bell and whistle shall be sounded at the distance of
Tbe statute is imperative, and the breach of it gives a right of action, whether the nonobservance of the statute was the proximate cause of the accident or not. This has been frequently held by see, Virginia . & Georgia Railroad Co., 9 Heis.,
The thirteenth assignment of 'error is based upon the refusal of the trial Judge to charge defendant’s request, to the effect that this statute does not require that the bell or whistle shall be sounded at the distance of one mile from the corporate limits, but at the distance of one mile from the depot or station.
This question was settled by this Court in Webb v. Railroad, 4 Pickle, 124, where it was held that the provision of the statute requiring the bell or whistle to be sounded at the distance of one mile from the city or town means the corporate limits of ■ the town or city. If this were not so, in the large cities the train would get into the city before it would be required to observe this stat-' ute, since the depot or station is, in many instances, more than a mile inside the corporate limits. The object of the statute was to give notice-of the approach of this heavy and dangerous machinery, where it would be required to pass through centers of population a sufficient length of time to thoroughly advertise its coming.
It will be observed that the suit was brought by the widow for her own use, and the children are not mentioned in the declaration as beneficiaries. In Railroad v. Loague, 7 Pickle, 458, it was held by this Court that the action being maintainable alone under the statute, there can be no recovery unless both the wrongful act and the existence of some beneficiary contemplated by the statute be proven, and, to be allowable on proof, such facts must first be averred.
The Court also charged that plaintiff has a right to recover such pecuniary damages as resulted to her or the children for whose use and benefit the action was brought.
It is insisted that as the declaration makes no mention of the children and the suit was brought solely for the widow, evidence of the number of children was improperly admitted, and that the Court erred in instructing the jury that the plaintiff could recover such damages as resulted to her or the children. There was no error in this action of the Court. In Collins v. East Tennessee, Virginia & Georgia Railroad Co., 9 Heis., 841, it was held, viz.: “In any case where there are children when the action is brought under the;
In Sample v. Smith, 1 Shannon’s Cases, 284, it was held, viz.: “It was not essential that the names of the children for whose use the action was brought should have been set forth. The law determines who are to be entitled to the benefit' of the recovery.”
In the case of Spiro v. Felton, 13 Federal Reporter, it was held, viz.: “In an action for damages for an injury causing death, brought for the benefit of the widow or next of ldn of the deceased, evidence of the number and ages of the children of the deceased is competent.”
These authorities are conclusive of this question, and it results that the judgment must be affirmed.