88 Tenn. 671 | Tenn. | 1890
Lead Opinion
On August 2, 1888, David Foster, ,a colored man about seventy years of age, wliile walking upon the railroad track about one mile south of Newborn, Tennessee, was overtaken by a freight - train, struck by the locomotive and so ■severely injured that he died within an hour.
Eliza Foster, his widow,' having first taken out letters of administration .on his estate, brought this
Appellants assign error (1) on the original charge of the trial Judge; (2) on his action in refusing to instruct the jury as requested; (3) on what is termed the second charge.
First. — The first assignment cannot be maintained, because the original charge of the Court upon which it is based, and which is complained of as erroneous, is not made a part of the record by bill of exceptions. It is true that what purports to be a charge in the case is found in the transcript, but it precedes the bill of exceptions, and is in no way made a part of it. Therefore, under a familiar and well-established rule of practice, it cannot be considered for any purpose in this Court. Huddleston v. State, 7 Bax., 55; Bass v. State, 6 Bax., 583; McGhee v. Grady, 12 Lea, 96; Owens v. State, 16 Lea, 1.
Second. — The next assignment fails for equally conclusive but different reasons. To put the trial Judge in error for refusing to give special instructions to the jury, it must appear that they were requested after and not before he submitted his general charge; the object of such instructions being not to suggest in the first instance what the charge shall be, but rather to supply some omission or correct some mistake made in the general charge — to present some material question not treated at all, or to limit or extend, eliminate or
TJnder the practice of this Court as laid down in Roller v. Bachman, 5 Lea, 158, 159, the several propositions which it is insisted were erroneously refused in this case, cannot be considered for purposes of reversal, because they were submitted to the trial Judge “at the conclusion of the evidence,” and no request for additional instruction was made after he had delivered his charge.
Of coui'se we know it is usual for counsel, by oral argument or written statement, sometimes both, to present their views of the law of the case in advance of the charge. That is a proper practice, and instead of being condemned is to be encouraged; yet, such presentation is not ' to be treated as a request for additional instructions, and made ground for reversal if not adopted by the trial Judge. • The office of special or additional instructions is that already indicated.
It may be said that counsel who have submitted one view of the law, should not be put to the useless and embarrassing task of repeating it, in the form of an additional instruction, after the Court has given a contrary proposition in charge. That is true. But in that ease nothing is lost if the request is not made; because, if the charge as given is ei’roneous, a reversal will follow without the request, and if correct the request could not change the result.
Again, the record, after setting out the prop
Third,. — The other assignment is made on the following recital in the bill of exceptions: “ The jury having considered the case, returned and asked the Court whether, if they found that the defendant had not strictly complied with all the statutory rules or precautions as given in charge, yet that the deceased’s own want of care and gross neglect-was the direct cause of his injury and death, they could not yet find for the defendant. To which the Court replied that they could not, but should consider such contributory neglect on the part of the deceased in mitigation of damages. If they found the railroad company wanting in full performance of statutory duties, plaintiff would be entitled to some damages in any event.”
It is insisted that this action of the Court was erroneous, and that he should have answered the
Learned counsel ■ makes an able and forcible argument in support of this view; yet we think it contrary to the obvious meaning of the statute. The response ‘of the trial Judge is in conformity to the construction announced by this Court in numerous decisions, some of which we cite. N. & C. R. R. Co. v. Smith, 6 Heis., 174; Hill v. L. & N. R. R. Co., 9 Heis., 823; Railroad v. Walker, 11 Heis., 383; N. & C. R. R. Co. v. Nowlin, 1 Lea, 523; Railroad Co. v. Smith, 9 Lea, 470.
Section 1166 of the Code (T. & S.) prescribes certain precautions to be observed by railroads for the prevention of accidents. The next two sections declare, in the plainest terms, the legal consequences of observance and non-observance. By § 1197 it is declared that in every case of nonobservance the railroad shall be liable for the damage done; and by §1198 it is declared that in every case of observance it shall not be liable at all. By the positive language of the statute liability flows from non-observance, and non-liability follows observance. Neither liability nor non-lia
At the common law contributory negligence may bar the action, but under the statute it is to be considered only in mitigation of damages. This distinction is forcibly illustrated and pointedly enforced in the ninth Lea case just cited. There the plaintiff’s intestate walked some distance on the track in the direction of the coming train and in full view of it, though several times warned of her danger by others near by. Indeed, “her conduct was so unaccountable as to induce the .belief upon the part of some that her death was intentional.” There were two counts in the declaration, the first charging a failure to observe the statutory precautions, and . the second charging common law negligence. Among other things, the trial Judge was requested to charge the jury that it was the duty of an intelligent being to exercise reasonable care to avoid danger, and that this precaution must be in proportion to the danger and knowledge of its existence. He responded: “ Such is the law applicable to the second count, but not to the first.” To the question thus presented this Court, speaking through Judge McFarland, said: “This proposition was applicable to
The same distinguished Judge, in delivering the opinion of the Court in Walker’s case, said: “It will be observed that the statute does not make the liability of the company depend upon whether or not the accident was the consequence of the failure of the employes to observe these precautions, but, on the contrary, the company shall be liable to all damages resulting from any accident or collision, in all cases where the company fails to prove that the precautions were observed. Therefore, • if the precautions have not been observed the company is liable, although it may appear that the observance of the precautions would not have prevented the accident.” 11 Heis., 885.
In Nowlin’s case this Court said: “The frequent and constant ruling of this Court has been that if railroads shall comply fully with the requirements of §§ 1166 to 1168, inclusive, of the Code, they are not liable in any case covered by the statutes; and, on the other hand, if they do not thus comply they are liable. So far as any defense may go in bar of the action, it must be such an one as the statute requires. From this it will be seen that no defense in bar of any such action as this can be predicated upon contributive negligence of
In Hill’s ease it appeared that his intestate was. walking on the track, toward the train, when struck and killed. Other men who were with him stepped off the track before the train got dangerously near. To explain his non-compliance with the statute, the engineer said he saw the other men step off and “ supposed the deceased would do so too, as he might have put himself out of danger by a single step.”
The liability of the railroad company for damages was denied on the ground that “the deceased came to his death by his own reckless incaution,” by “his own willful act.”
Though the supposition of the engineer was a very natural and reasonable one, the judgment below was affirmed, this Court saying: “ The statute does not brook the slightest speculation upon things probable or possible, either by the Court or the company's agents; but demands absolute obedience to its provisions, whether they seem necessary or not.” 9 Heis., 827.
The deceased in the 6 Heiskell case was killed by a locomotive while he was lying upon the track drunk and asleep. This Court held that “the negligence of the deceased in contributing to
Further citation and review of our cases on this subject would be unprofitable. They are all of one accord.
Had the facts justified it, the failure to comply with the requirements of the statute could have been excused and liability avoided by showing that compliance was impossible after the deceased appeared upon the track and could have been seen by a proper lookout. E. T. & Va. R. R. Co. v. Swaney, 5 Lea, 119.
Ho such excuse was claimed, however; but, on the contrary, the engineer admitted that he saw the deceased on the track for at least a quarter of a mile back, and came almost upon him before attempting to observe the statutory precautions, his reason for his failure being that he saw the deceased look back, and supposed he would get out of the way in time to prevent a collision.
Let the judgment be affirmed.
Dissenting Opinion
DISSENTING OPINION.
Concerning the main point of decision, I regret my inability to concur either with the reasoning or the conclusion as announced. The
Under this decision, the railroad companies must apply the brakes and use every possible means, of stopping the train whenever a person is seen on the track. This, too, without regard to the distance, and notwithstanding the person has responded to the alarm-whistle by looking up, or looking back, as the case may be, and otherwise indicated to the engineer in charge, as a reasonable and prudent man, that he has seen and appreciates the danger and will avoid it.
Or, failing to apply the brakes and to attempt to stop the train, the company must respond in substantial damages to the party injured, regardless of his conduct in thus misleading the engineer, and in willfully remaining on the track until too late for any possible precautions, statutory or otherwise, to prevent the injury.
The enforcement of such a rule would often require forty-eight hours for a train to pass from Memphis to Nashville, instead of eight or ten hours. It would render all close connections or through transportation — confessedly of vital impor
To me it seems too plain for argument that the Legislature never intended to .place a living, moving, seeing, hearing, human creature of mature years and sound discretion on the same footing with cattle or inanimate objects, or with a person apparently unaware of the approaching train, or incapacitated, by reason of his surroundings or otherwise, from appreciating and guarding against the danger of the situation.
The statute says “person, animal, or other ob-structionUnder well-known canons of construction the “person” within the meaning of the legislators must be, or appear to the lookout to he, an “obstruction” upon the track. It could never have occurred to the Legislature that a living, active, alert adult, who had indicated to a careful and prudent observer by his conduct that he saw and appreciated the danger, and would avail himself of ample time and opportunity afforded by the distance to step safely from the track, would he regarded as an obstruction so as immediately to call for resort to the statutory precautions against accident. This Court has repeatedly held that our statute in question was only declaratory of the common law rule of pru-
And in Pratt’s case, 1 Pickle, 14, Judge Snodgrass, speaking for the present Court, says, after citing Horn v. Railroad, 1 Cold., 75; Railroad Company v. Connor, 9 Heis., 21; and Burke v. Railroad, 7 Heis., 463, concerning the statute in 'question: “It does not create any new form of negligence -which may be distinguished from another by the term ‘statutory,’ or leave out any which" might be classified as common law negligence.”
That the company would not be liable under common law principles in the case at bar, under the case put by the jury in its inquiry of the trial Judge and sustained by the record, there is no one so bold as to affirm, I presume. Schofield v. Railroad, 114 U. S., 615; and Railroad v. Houston, 95 U. S., 697.
That the employes are not bound at common law to stop every time a person is seen ahead on the track who gives evidence of being alert and of having heard aud seen the train, has repeatedly been held by Courts of high authority. Railroad Company v. Stroud (Mississippi), 31 Am. & Eng.
The case made in the proof, when taken in connection.with the response of the trial Judge to the inquiry made by the jury while they had the case under advisement, clearly presents the question we have been discussing, and emphasizes the error of the Circuit Judge. It is undisputed that the deceased heard the whistle, and said: “ Come on, old train; I’ll get out of your way.” And some moments later, when the train had gotten within some hundred or two yards of him, again hearing the whistle, he turned and looked to see its distance, and this movement was observed by the engineer.
It will not be out of place to repeat what took place between the Court and jury. Being manifestly of opinion that there should be no recovery against the railroad, and yet embarrassed in reaching what to them appeared a just result under the instructions theretofore given, the jury “returned and asked the Court whether, if they found that the defendant had not strictly complied with all the statutory rules or precautions as given in charge, yet deceased’s own want of care and gross
The opinion of the majority does not attempt to justify the doctrine thus announced by any thing to be found in the common law, but places its affirmance solely upon the statute, as imperatively demanded by the terms thereof and the decisions of this Court thereon.
Row, I most respectfully but earnestly contend that such extreme holding has no warrant in the statute fairly construed, and that it has no decision of this Court directly sustaining it, unless it be the case of Hill v. Railroad Company, 9 Heis., 823, opinion in 1872 by Judge Sneed. While the result in that case may be said to be altogether proper — under the statement of facts given by the learned Judge to the effect that the deceased was drunk, and had given to the railroad operative no evidence of having seen the train, as shown by the language of the Judge in the inquiry, “How could the engineer know that the deceased was not both ■blind and deaf?” and the negligence of the engineer under the circumstances of the case in not ringing the bell until within twenty-five or thirty fegt nor sounding the whistle until within twelve or
So also the Courts, holding that contributory negligence must be considered in mitigation of damages, have taken liberties with the literalism of the statute, which says that in case of non-compliance the railroad company shall be responsible for all damages to person or property, occasioned or resulting from any accident or collision that may occur. Likewise in Railroad v. Scott, 3 Pickle, 494, in holding that the precautions need not 'be resorted to in the order named in the statute.
Row, where is the authority for all these holdings to be found, save in the application of the common sense and common law rules of construction? Certainly not in a blind adherence to the literalism of the statute.
As was said by Judge Cooper, speaking for the Court in Fleming’s case, “the rule is applicable to .all cases of contributory negligence, and is not confined to cases growing out of our statutes regulating the duties of railroad employes on a moving train when an obstruction appears on the track.” It is merely an adoption of the law which prevails in civil actions for assault and battery, where the conduct of the plaintiff in the way of provocation is always admissible in evidence to •mitigate the damages.
•How, what, is the true rule in the character of cases we are considering? I cannot state it better than in the language of this Court in Fleming’s case, 14 Lea, pages 136-139, a part of which I quote: “ In this State we hold that although the injured party may contribute to the injury by his ■own carelessness or wrongful conduct, yet if the
This Court followed the rule as above stated, announcing in Hall’s case, 4 Pickle, at Knoxville last term, that the negligence of plaintiff which is to be taken in mitigation is such as contributed incidentally, and not as the proximate or immediate cause of the injury, and that where the negligence of the plaintiff was the proximate in the sense of direct cause of the injury there could be no recovery.
How, the case made by request of the jury and instruction of the Court is one where the injury was, in the language of the jury, the direct result of the gross negligence of the plaintiff. In such case my view is that it is a bar to the action,
■In conclusion, I submit that if I be wrong in the views I have above hastily prepared, and we are constrained to hold that the plaintiff, under the statute, should have some recovery, then we should, upon every consideration of public policy, make the recovery merely nominal in a case where confessedly there could be no recovery without the statute.
It will not do to say that in the case at bar the recovery being only for $300, is, for a human life, substantially nominal. Nor the purpose of this one case that may be granted. But we are settling a principle, and that principle is that the jury may fix damages in such cases at such figures as to them may seem right, and allow the direct cause and gross negligence of plaintiff to be considered by them in mitigation. Now, under such a charge, where they have fixed their verdict at $2,500 or more, how is this Court to disturb it? Iiow can the Court say that the jury have not fixed damages at $10,000 and allowed $7,500 in mitigation under the rule which prevents this Court from disturbing the verdict in such cases, except where it is so excessive as to indicate passion or prejudice?
For these reasons, I reluctantly but respectfully dissent from the opinion just announced by the majority of the Court.
It is, perhaps, needless to add that no thoughtful person will suppose, from any thing I have herein said, that railroads are at liberty to run down any trespasser upon their tracks. The dangerous character of the means they employ imposes upon them a very high degree of care in the running of their trains, independent of any statute; and, if experience or observation is worth any thing, the juries of the country may be depended on to hold them to the exercise of proper care and prudence in the effort to prevent injury to persons on the track, hut we submit it should be done always under a proper charge by the Court.
