98 Tenn. 655 | Tenn. | 1897
These actions are for damages for killing of Mary Jane Stiff and Wm. F. G. Irving by the defendant railroad company. The latter case is before us on original hearing and the former on petition for rehearing. The. cases involve identically the same matters of fact and questions of law, the two parties, Stiff and Irving, having been killed at the same time and by the same collision. The railroad company was running an engine and tender, in charge of a hostler and his assistant, backward over its track through the city of Memphis, about nine o’clock of the night of July 26, 1895. This engine and tender had been detached from an incoming freight train, and was returning to the roundhouse for the night, while the freight train was being-pushed into the yards of the company by a switch
The killing occurred at the crossing of Kentucky Avenue and Carolina Street. The two persons were a young negro woman, some twenty to twenty-five years of age, and a boy about twelve years old. They came down Carolina Street to the Kentucky Avenue crossing at the time when the freight train was crossing the street, and stopped for it to pass by. When it cleared the crossing they attempted to pass over the street, when they were run over and killed by the road engine and tender going to the roundhouse in the opposite direction. This point was not in the yards of the company, and the engine and tender were not engaged in switching, and they were not such an engine and' ’tender as was used .for switching, but were the ordinary road engine and tender. There was no headlight upon this engine, and no light upon the tender, which was in front as it proceeded backwards. There is a conflict as to the speed of the moving engine and tender, and as to whether the bell was rung, and as to the amount of light at the place, given by the city lights. There was the hostler and his assistant in the cab of the engine, but no one upon the tender, and the evidence is that the hostler and assistant could not see the track in front of the tender as it moved backward, because of its construction, and because coal
While many errors are assigned and have been heretofore considered on the hearing of the first named case, the contention is now made, and renewed with much force and earnestness and ability, that the trial Judge erred in giving in charge to the jury Subsecs. 3 and 4 of Sec. 1574, Shannon’s Code, and especially the latter, which is as follows: “Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive always on the lookout ahead, and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident.” Section 1575 is: “Every railroad company that fails to observe these precautions, or cause them to be observed by its agents or servants, shall be responsible for all damages - to persons or property occasioned by or resulting from any accident or collision that may occur.”
The contention is that these sections are not applicable under the facts in the record, and should not, therefore, have been given in charge to the jury, the insistence being that the law will not re
The questions involved under this contention have received the consideration of this Court upon many occasions, and the matured conclusions of the Court have been expressed in a number of published opinions. Perhaps in none of them has the rule been so plainly
It is further held, in the case of Railroad Co. v. Wilson, that these requirements apply to all trains and engines propelled by steam, whether they are moving forward or backward, and whether the engine is at the front or rear, or at some intermediate point in the train. It is further held, and such is the inevitable logic of the other propositions, that when the train is being run backwards or by means of an engine placed elsewhere than in front, the liability of the company for injuries inflicted is absolute, because the statutory precautions can only be complied with when a train is moving forward by means of an engine in front.
To hold a doctrine different from this would be' virtually to annul the provisions and requirements of the statute, inasmuch as a railroad company could absolve itself from all duty to comply with the requirements, because, forsooth, they had made it impossible to do so. It is no answer to this to say that the accident would have occurred in any event, even if the cars had been moving forward with the
We can add nothing to the force, and certainly cannot make plainer, the principle laid down in the Wilson case, that a railroad company may run its engines, tenders, and trains backward if it prefers, or sees proper to do so from convenience, necessity, or other reason, but it will always follow that the statute will make it liable for any and every injury inflicted while doing so. If any injury occurs, then liability follows inevitably, and the only question to be considered is the amount of the injury and the extent, if any, of the contributory negligence of the injured person.
It is only necessary, in regard to the case of Railroad v. Seaborn, 1 Pick., 391, relied on by counsel, to say that it was a case where the train was moving forward in the manner sanctioned by statute. In such case excuses and defenses of impossibility of performance can be set up to avoid
The only other question which could possibly arise upon the merits. of the case was the contributory negligence of the injured persons; or, in other words, the liability being absolute for some amount, the only other inquiry is, what are the damages, and are they to any extent, and, if so, to what extent, mitigated by the contributory negligence of the injured persons? Upon this question the charge of the Court was correct, and, upon a careful examination and review of the evidence, we are unable to see any contributory negligence on the part of the two deceased persons. They passed behind the freight train at a public crossing, and had no means of knowing that an en
In this connection much stress is laid upon the obligation to stop, look, and listen before going over the tracks of a railroad. The evidence in this case is that the deceased parties did stop. They were compelled to do so, awaiting the passage. of the freight train. These obligations to stop and look and listen must receive a reasonable construction and . interpretation. It cannot be required that a person shall always stop or always look or always listen, but the requirement is that these precautions shall be so observed as to free the party from all negligence. A party cannot be required, for instance, to stop or listen when, on approaching a crossing, he can see a reasonable distance up and' down the track so as to be certain he runs no risk in crossing. He cannot be required to listen if he is deaf or the noise of the surroundings is so great as to preclude all possibility of hearing. He cannot be held liable for negligence in failing to look when his view is absolutely cut off or so obstructed as that he can
The damages in this case are not excessive— $3,000 for the woman, $2,500 for the boy. The amounts do not indicate passion, prejudice, or caprice on the part of the jury, but are not more than compensatory, while the evidence would have justified the giving of exemplary or punitive damages. We see no error in the record, the petition to rehear is dismissed, and the judgment in each case is affirmed with costs.