219 F. 702 | 6th Cir. | 1915
This writ of error is brought to review a judgment recovered by the administrator for the death of his infant son, caused by collision with defendant’s freight train. The father’s home was upon the south side of the railroad track, which was unfenced. He had a warehouse on the north side of the track, a little easterly of the house. His factory was further to the east, and on the same north side of the track. The entire premises were less than a mile east of Morristown, Tenn. Just before the accident the deceased, who was about seven years and two months old, was at the factory with his brother, who was two years older. The two boys started from the east end of the factory to run home (a distance of a few hundred feet), and between the factory and the warehouse began racing. The railroad
The statute has been held not to apply to injuries received in switching movements, to employés whose duty it is to yield the track, or to passengers injured by obstructions -in the roadbed. Railway Co. v. Rutland (C. C. A. 6) 207 Fed. 287, 289, 125 C. C. A. 31, and cases cited; Railroad Co. v. Rush, 15 Lea (Tenn.) 145.
In Railroad Co. v. Davis, 104 Tenn. 442, 450, 58 S. W. 296, 299, in a case arising under subdivision 3, it was said:
“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.”
True, in Railroad Co. v. Feathers, 78 Tenn. (10 Lea) 103, 105, the court, in refusing to apply subdivision 3 to an injury resulting from the. fact that a horse, while being driven along the highway, was frightened by the sound of the train, said that the statutory regulations “do not apply in favor of parties not injured in crossing or attempting to cross a railroad, but simply by reason of the fact that they are casually riding along near and parallel to the railroad [italics ours] on a public road, with no purpose to cross it.”
But in Railroad Co. v. Gardner, 1 Lea (Tenn.) 688, 691, which was in fact a case of injury at a crossing, the trial court held the requirements of subdivision 3 applicable. In replying to the insistence that the rule of absolute liability was limited to cases in which the “obstruction appears on the road,” requiring a lookout, etc., the court said (speaking of the following section, 1167, now 1575):
“We can see nothing in the language of this section to limit its operation * * * to the section [meaning, of course, subdivision] immediately preceding it. If such had been the legislative intent, it would have been easy to have said so. We must give the language its natural signification, and this inevitably makes it include all the previous'precautions in the statute, * * * none being excluded.”
In Byrne v. Railroad Co., 61 Fed. 605, 612, 613, 9 C. C. A. 666, 24 L. R. A. 693, this court held subdivision 3 applicable to the case of a pedestrian stepping in front of the train so shortly before the collision occurred as to prevent the employment of the precautions prescribed by subdivision 4. The statute cannot be construed as limited to attempts to cross the track.
As indicating the liberal interpretation put upon the statute: In L. & N. Ry. Co. v. Truett, supra, recovery was permitted upon the theory that the deceased, when about to cross and seeing the approaching train, attempted to turn his horse back, 'but the latter became frightened and unmanageable, and crowded so close to the train that the deceased was struck by a passing car.
It can scarcely be doubted that one attempting in the darkness of the night to cross a railroad track, and so colliding with the side of an unseen moving train, would not be denied recovery from the mere fact that he had not appeared upon the track itself ahead of the train. We thus think subdivision 3 applies, although the boy. did not appear as an obstruction in front of the train. We find nothing in the cases relied on by defendant which we think should lead to a contrary conclusion.
“The railroad company is responsible for the damages occasioned by or resulting from the accident or collision, unless it shows that the precautions*707 prescribed by these sections were performed, and although it may appear that the accident or collision would have occurred had the precaution been performed. Cases of hardship and absurdity may occur upon such construction of the clauses of the Code; but the language is explicit and certain, and the construction is inevitable.”
True, in the Burke Case it was said that “a person injured by a collision or accident caused by his own willful act” cannot recover. That was a case of collision with an employé of the railroad who had lain clown drunk on the track, the duty on which he was sent out being to tighten the joints of the rails and to help repair a switch; and the holding of the Burke Case as to the effect of a “willful act” was applied by this court in Byrne v. Railroad Co., supra, to the case of a pedestrian who stepped in front of an approaching engine, suggesting an apparent intention of thereby committing suicide. We think the court did not err in limiting the effect of the boy’s action by reference to his intelligence and appreciation of danger. Were this a question of contributory negligence, such considerations plainly would control. What is said in Felton v. Aubrey (C. C. A. 6) 74 Fed. 350, 361, 20 C. C. A. 436, respecting the nonliability of a railroad company to keep a lookout for infants more than for adults, has reference to the negligence of the railroad company. Here defendant’s negligence, or its equivalent, was made out when failure to observe the statutory precautions appeared. Without otherwise attempting to define the limitations of the defense of “willful injury,” we think it clear, in view of the absolute nature of the statutory liability despite affirmative showing that compliance with the statute would not have prevented injury, that the defense in question is, at most, so far an exception as to justify, as applied to children of tender years, at least no harsher rule respecting intelligence and appreciation of danger than would be applied in common-law actions where contributory negligence is set up.
While we have not discussed all the errors argued, we have considered them all, and find no error.
The judgment of the district court is affirmed, with costs.
“1574 (XX66) X298. * * * (2) On approaeliing every crossing so distinguislied, the whistle or bell of the locomotive shall be sounded at the distance one-fourth of a mile from the crossing, and at short intervals until the train has passed the crossing;
“(3) On approaching a city or town, the bell or whistle shall be sounded when the train is at the distance of one mile, and at short intervals till it reaches its depot or station; and on leaving a town or city, the bell’ or whistle shall be sounded when the train starts, and at intervals till it has left the corporate limits. >
“(4) 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 an accident.”
Railroad v. Walker. 11 Heisk. (Tenn.) 383; Railroad Co. v. Burke. 6 Cold. (Tenn.) 45; Railway Co. v. Howard, 90 Tenn. 144, 150, 19 S. W. 116; Railroad Co. v. Acuff, 92 Tenn. 26, 20 S. W. 348; Byrne v. K. C., Ft. S. & M. R. Co., 61 Fed. 605, 9 C. C. A. 666, 24 L. R. A. 693; Felton v. Newport, 105 Fed. 332, 44 C. C. A. 530; Rogers v. C., N. O. & T. P. R. Co., 136 Fed. 573, 69 C. C. A. 321; L. & N. Ry. Co. v. Truett, 111 Fed. 876, 50 C. C. A. 442; Railroad Co. v. Sutton, 179 Fed. 471, 103 C. C. A. 51; Transit Co. v. Walton, 105 Tenn. 415, 426, 58 S. W. 737.