101 Tenn. 197 | Tenn. | 1898
W. W. Thompson brought this' action against the Mobile & Ohio Railroad Company, to recover damages for injuries received by a mare in collision with one of the company’s moving trains. The Circuit Judge, who heard the case without the intervention of a jury, rendered judgment in favor of Thompson for $30, and the railroad company appealed in error.
Though admitting the injury to the mare, the company denies that it is legally responsible for the damage done. The collision occurred on a private crossing, at the intersection of the company’s track and a private road, about one mile north of the town of Dyer. W. A. Hearn owned the private road, and had used it for twenty-five or thirty years as a private way from his residence across the railroad track into ’ a large uninclosed woods, and thence ■ to a public road leading to town, school, mill, church, and graveyard. He owned the land on both sides of the railroad, and had no other open way ■ of ingress and egress to and from his residence, which stands but a short distance west of the crossing. The land on each side of the track and on each side of the crossing for a greater or less distance was inclosed by the owner, cattle guards were erected by the railroad company across its track on each side of the crossing, and these
There could be but one of two grounds of liability on the part of the railroad company — first, a failure to comply with statutory precautions for the pre
In any and every view of the evidence, the. animal’s appearance upon the track, or in dangerous proximity to it, was, undoubtedly, so sudden that those in charge of the engine could not, thereafter, by the greatest possible diligence, have observed the precautions prescribed by the statute (Code, § 1166, Subsec. 4; M. & V., § 1298, Subsec. 4; Shannon, §1574, Subsec. 4) for the prevention of accidents. This being so, the admitted nonobservance of those precautions affords no ground of liability on the part of the railroad company for the damages done. The law does not require . impossibilities, nor impose penalties for not doing what could not have been done. The impossibility of observance in a case like that before the Court excuses from liability for nonobservance. Railway Cos. v. Foster, 88 Tenn., 680; Railroad v. House, 96 Tenn., 555. It follows that there is no ground of liability on the part of the railroad company in this case, unless a failure to fence its track at the crossing where the injury was inflicted renders it liable.
The statute as ' to fencing declares “that any person, company, or corporation, lessee or agent
This is known as the railroad fencing Act. Thereby, “the duty of fencing, and the resulting-liability for failure to perform such duty, is imposed, not so much in the interest of the owners of the animals which may go upon an . unfenced road, as in the interest of the general public who are concerned, that accidents shall be avoided and public travel be made as safe as the exigencies of that manner of transportation will permit.” Railroads v. Crider, 91 Tenn., 496. “The object of the Act was to induce railroad companies to fence their
Although the language is very general and comprehensive, and does not, in terms, except any part of any railroad track from the operation of the statute, it is manifest that the complete inclosure of every track, from one end to the other, by a continuous fence, would be wholly impracticable, and could not have been contemplated by the Legislature. Hence, it has been held that the statute does not apply to depots or stations, or to grounds immediately surrounding them, or to the crossings of public highways, or to portions of tracks that lie within towns or cities, and are intersected by public streets. Railroad v. Hughes, 94 Tenn., 450; Railroad v. House, 96 Tenn., 552.
A paramount public interest always intervenes at those places, and for that reason, fencing statutes, though in general terms, are uniformly construed as impliedly excepting them from their operation. Elliott on Railroads, Secs. 1193-1195; 1 Am. & Eng. Ene. L., pp. 910-912; Thornton on Railroad Fences, etc., Secs. 86 and 91. Besides the' insuperable in
In the States so holding, railroad companies are required to inclose private crossings by gates or bars, so as not to prevent owners from using them. 3 Elliott on Railroads, Sec. 1200.
This rule in respect of private crossings, - which seems to prevail almost universally in other States, would be equally applicable in this State, and controlling in the present case, if the fencing statute stood alone and unaffected by other statutes, for here, as elsewhere, private crossings are maintained for private use, and not for the good of the public. But this statute must be considered and construed in connection with the prohibitory statutes previously mentioned. To include private crossings in the fencing statute is to run counter to those
It cannot reasonably be assumed that the Legislature, in passing the fencing enactment, intended to impose on railroad companies any liability for failure to inclose, by gates or bars or otherwise, any crossing or place or part of their lines which, by those other statutes then existing, they were expressly prohibited from obstructing in any manner whatsoever, upon the penalty of punishment in the Criminal Courts of the State; nor can it be justly said that the necessary conflict is so great that the fencing statute impliedly repealed the others. Indeed, there is no actual conflict when the fencing statute is given its proper meaning — when made to apply only to those parts of the road against whose obstruction there was no previous prohibitory legislation. All of the enactments- may stand together in full force and virtue, and operate harmoniously, when the fencing Act is given this construction, and
The crossing involved in this case is undoubtedly embraced in those terms, and, being so, is excluded from the operation of the fencing Act. The railroad company was not only under no legal obligation to fence this crossing, but was positively inhibited from doing so. Had it obstructed the owner’s use by fence, gates, or bars, it would thereby have subjected itself to criminal prosecution under the prohibitory statutes mentioned, and the existence of the fencing statute would have been no defense; conviction would have been inevitable. From all of which it follows that the railroad company is not liable for the injury done to the plaintiff’s mare.
The crossing on which she was injured, though a private one, is not within the provisions of the fencing Act, and, for that reason, a failure to fence is no ground for liability. Not having been brought within the provisions of the fencing Act, this crossing was left under the operation of the statute prescribing precautions for the prevention of accidents; but, as has been seen, the mare’s appearance was so sudden as to render compliance with those precautions impossible, and, for that reason, the failure to comply with them affords no ground of liability.
The judgment below is reversed, and this Court, rendering the judgment that the trial Judge, sitting without a jury, should have rendered, adjudges the nonliability of the railroad company, and dismisses the plaintiff’s suit at his cost.