122 Tenn. 127 | Tenn. | 1909
This action was brought in the circuit court of Shelby county to recover damages for an injury inflicted upon the defendant in error by plaintiff in error’s railroad train, of which Forsyth was engineer, in the State of Mississippi. There was a demurrer, and judgment in the court below for $2,500, from which the plaintiff in error appealed to the court of civil appeals, and there the judgment was affirmed. A petition has been filed by the plaintiff in error in this court for the writ of certi-orari to bring the case here for trial.
We have examined the case with care, and are convinced that both the circuit court and the court of civil appeals committed error, and the judgment rendered by each of them must be reversed.
This was all of the evidence upon the subject of how the accident occurred. There was a motion entered in the court below for a peremptory instruction in favor of the defendant. We think it should have been granted. It is impossible to say from this evidence, or to conjecture, Avhen the defendant in error’s arm fell upon the track. It may have been lying upon the track some
In addition to the view just stated, if we could assume from this evidence that the defendant in error had his arm lying upon the track at the time, and before, the passenger train approached, still he would not be entitled to recover. There is no averment, or proof of the existence of any statute in Mississippi, similar to our statute, upon the subject of obstructions upon railroad tracks. Our cases, however, hold that the statutory provisions above referred to are but declaratory of common-law duties, except in respect of the burden of proof and the absolute liability imposed for failure to use the precautions referred to. Railroad v. Wilson, 90 Tenn., 274, 275, 16 S. W., 613, 13 L. R. A., 364, 25 Am. St. Rep., 693; Railroad v. Fleming, 14 Lea, 139; Rail
We bave not in tbis case applied tbe rule applicable to tbe negligence of fellow servants, since tbe declaration pleads and relies upon a statute of tbe State of Mississippi, where tbe accident occurred, wbicb relieves tbe defendant in error of tbe disabilities arising out of sucb relation.
On tbe ground stated, tbe judgment of tbe circuit court and of tbe court of civil appeals must be reversed, and tbe suit dismissed, with tbe costs of tbis court and of tbe court below.