90 Tenn. 144 | Tenn. | 1891
This suit was brought by Eliza Howard, widow of John Howard, for damages for the killing of her husband by the railroad company within the corporate limits of the town of Paris. The
The statute provides: “ On approaching a city or town, the bell or whistle shall be sounded when the train is at a distance of one mile, and at short intervals until it reaches its depot or station; and on leaving a town of city, the bell or whistle shall be sounded when the train starts, and at intervals until it has left the corporate limits.
“Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon 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 the accident.
“Every railroad company that fails to observe these precautions, or cause them to be observed by its agents and servants, shall be responsible for all damages to persons or property occasioned by
It is insisted b}r the company that if the whistle was blown, and every precaution taken to stop the train when the obstruction appeared upon the track, that the company would not be liable for a failure to sound the whistle or ring the bell within one mile of the corporation line, and at short intervals until it reached the depot or station. . We cannot assent to this proposition. This Court has held that all these requirements look to the safety of ■ persons and animals. 1 Lea, 691. The requirements are all the same statute, and we cannot give effect to one and make another inoperative.
In Railroad Company v. Scales, 2 Lea, 688, it is said that, considering the character of machinery necessary for carrying on the operations of railroads, and its capacity and liability to work hurt and injury to persons and property, the statute is a proper one and should be rigidly enforced.
One of the witnesses in this case says that he heard the whistle at the mile-post, and if, at short intervals, it had continued to sound or the bell to ring it may have been that it would have arrested the attention of the deceased, and thus have pre
The Court charged the jury at length upon common law negligence on the part of the company, and submitted to them whether the negligence of the deceased or the company was the proximate, primary, or immediate cause of the accident. The charge upon this subject was proper if it had been applicable to the facts of this ease; but here its only tendency was to confuse the jury, and should not have been given. There is not a fact developed in the proof that makes that part of the charge applicable. If the mules were running away, or could not he controlled by deceased, and had been running in the direction of the track, then the railroad would have been guilty of' negligence at common law,' unless it took steps to stop tlie train; but a railroad company is not guilty of negligence if it fails to take steps to stop its train whenever a wagon is seen approaching its track. If so, it would derange all connections and impede travel. It is only when an obstruction appears on its track, or within striking distance of its track, that the statute imposes the requirement of stopping the train by putting on the brakes, reversing the engine, etc.
Abstract propositions of law not applicable to-the facts developed by the proof should not he
The charge of the Court upon negligence in not complying with the requirements of the statutes was correct. The railroad company being, as we have shown, guilty of statutory negligence, was liable, and the defendant in error was entitled to recover damages; but the amount of damages should be lessened by the negligence of the deceased. In not looking or listening for the train before going upon the track, the -deceased was guilty of gross negligence, and such conduct should mitigate the damages to be recovered' . by the defendant in error.
It is assigned as error that the Court admitted proof of the value of crops made by deceased some years before he was killed in estimating damages sustained by defendant in error. The witness Adkins testified that he had known deceased for some years, and that he was a farmer; and after proving his character and habits, he was asked by the defendant in error: “During the time you were acquainted with him and his farming operations, what would be the minimum value per an-num of his crops?” The witness answered: “I suppose about $250.” This question and answer was admitted over the objection of the attorney of plaintiff in error. This was error for which a
The case will be reversed, and the defendant in error will pay the cost of this Court.