127 Tenn. 77 | Tenn. | 1912
delivered the opinion of the Court.
Binkley recovered judgment in the circuit court of Davidson county for $500 against the railroad company, and, on appeal, the judgment was affirmed by the court of civil appeals; and the cause is before us on the petition of the Railroad Company for writs of certiorari and supersedeas,
About 8:10 a. m. on February 20, 1910,. Binkley, who had been drinking the night before and during that morning, was sitting on the end of a cross-tie on the railroad track of the defendant at a point within the city limits of Nashville, near the Hermitage Elevator and beyond the Shady Lane crossing. It is clearly to be inferred from the proof that, while so sitting, he either fell asleep or was so intoxicated as to be unaware of the dangers of his position; for, while so situated, one of defendant’s engines, pulling a train of twenty-eight cars, came along the track, and struck and seriously injured him.
. The action is predicated on the negligent operation of this train, and the failure of the defendant to observe the precautions required by section 1574, and its subsections, of Shannon’s Code. The declaration does not specifically aver the failure to observe these precautions, but it did aver that:
“The defendant carelessly and negligently ran one of its engines and trains upon, against, and over plaintiff, whereby he was crushed, mangled, bruised,” etc.
This court has held averments the same in substance as the above to be sufficient to give the defendant notice that the suit is based on its failure to observe the precautions required by the . statute, and that such declaration was good notice to the defendant to come to trial “prepared to show.that it had neither done, nor omitted to do, any act which the law,” both, before and, after the
Petitioner made three assignments of error in this court, but, as we understand them, they t present only two questions:
First. Was the defendant entitled to the following special instruction which it requested the trial judge to give at the conclusiou of the general charge, and which was refused? The special instruction is as follows :
“If you find plaintiff went upon the railway track while under the influence of whisky, or in an intoxicated condition, and should find that the train of defendant company ran against and injured plaintiff without observing all the statutory precautions, which I haye explained to you, and you should further find that at the time the train ran against the plaintiff the plaintiff was drunk or asleep on the railway track, then, in such case, the plaintiff could not recover more than nominal damages; that is to say, one cent or one dollar.”
The right of the defendant to- the foregoing special instruction depends upon the proper construction of section 1575 of Shannon’s Code, which is as follows:
“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*82 persons or property occasioned by, or resulting from, any accident or collision that may occur. (1855-56, ch. 94, sec. 9.)”
This section must be construed in pari materia -with section 1574 and its subsections 1 to 4, inclusive, to' section 1576 of Shannon’s Code, inasmuch as these three sections of Shannon’s Code are carried into that Code from sections 1166, 1167, and 1168 of the Code of 1858, and constitute part and parcel of a general scheme of legislation, which should be looked to in toto when any part is under construction. This legislation in the Code of 1858 had appeared in part in chapter 94, Acts of 1855-56.
Our cases construing this legislation are numerous. Into one clearly marked class fall those in which it has, been held that this legislation did not apply, and that the rights of the parties could only be worked out by an application of the common law. Some of these are:
Railroad Co. v. Feathers, 10 Lea, 103; Holder v. Railroad Co., 11 Lea, 176; L. & N. R. R. Co. v. Robertson, Adm’r, 9 Heisk., 276; Haley v. M. & O. R. R. Co., 7 Baxt, 239; N. C. & St. L. R. R. Co. v. Seaborn, 85 Tenn., 391; 4 S. W., 661; Cox v. Railroad Co., 1 Shan. Cas., 475; Railroad Co. v. Pugh, 95 Tenn., 421, 32 S. W., 311; Railroad Co. v. Rush, 15 Lea, 150; Bradley v. Railroad Co., 14 Lea, 377; Taylor v. Railroad Co., 93 Tenn., 307, 27 S. W., 663.
Another, and equally well-marked, class are those held to be within. .the .application of the statute, and. «orne of these are:
The present case, upon its facts, falls clearly within the operation of this legislation. We do not understand a contrary insistence to be made. The right of defendant to the special instruction already set out is urged mainly upon the authority of an unreported per curiam opinion of this court delivered at its September term, 1909, in the case styled C., N. O. & T. P. R. R. Co. v. Alexander Abbott, Adm’r, from the Scott county law docket. The opinion of the court in that case fully warranted the special charge already set out which was properly requested, but refused by the circuit judge, and the important question now presented is whether we will adhere to or overrule the opinion in the Abbott Case
It has always been the public policy of this State, rec-ognised by the legislature and this court, to require oí
Such was its policy before the Code of 1858, and before the Act of 1855-56, ch. 94, as was evidenced by the Act of 1853-54, ch. 33, by which railroad .companies were made, liable for all stock killed or damaged by them, except in cases where the owners placed or caused it to be placed on the railroad for the purpose'of having, it killed or injured, and, with the exception stated, this' act made the company liable absolutely, and without regard to the care and caution used by them, as was stated in the opinion of this court in E. T. & Ga. R. R. Co. v. St. John, 5 Sneed, 526, 73 Am. Dec., 149. That was a case where a negro slave eight years ¡of age was killed by a train while he was lying on the railroadJ track, asleep. This court, speaking through Judge Car-uthers, said in substance:
“In such cases as this we think* it not too strong toi require the utmost care and diligence as charged by the, court.”
And it was further said in that case as to the properl attitude of the courts toward such companies that:
“While, on the one hand, the courts should protect1 l hem" with a strong hand against unjust demands and1 injuries to their property, which popular prejudice may favor or indict, on the other, the security of life and property requires that they should be held to a strict,'! careful, and skillful performance of all the duties imposed aptm them by law.”
And by the same cases and others it is also well settled that, however gross such contributory negligence in such a case may be, it will not operate as a bar to the right of the injured party to recover some damages. Evidently, then, the measure of the recovery should, in such a case, be the amount of the damages sustained,, so reduced or mitigated that the amount recovered will be a just demand, considering the degree or extent of the contributory negligence of the injured party. The determination of what sum should be recovered in such a case is a question of fact for the jury, and should be submitted to them under proper instructions upon the law applicable to the facts of such case.
The supervisory power of the trial and appellate ■courts over verdicts of juries under our practice is ample protection against injustice or excess. The mero fact that a man is drunk and asleep upon a railroad does not justify the servants of the company in failing to obser\e for his protection such or all of the required
These statutes, as we have seen, voice the policy of that public, and are binding upon this and all other of its courts. For them the statutes are mandate and declare the law. Mere arguments based on the principles of the common law, which applied before the passage of the statutes, as to what the law should be, are wholly beside the mark; for the statutes tell us what it is, and thus cut off debate.
In cases falling within the operation of these statutes this court has repeatedly held railroad companies liable for damages where the contributory negligence of the party injured was very gross. Some examples are as follows:
In L. & N. R. R. Co. v. Burke, Adm’r, 6 Cold., 50, the injured person was lying upon the track, motionless, and there was evidence tending to prove that he was drunk at the time he was injured.
In Hill v. L. & N. R. R. Co., 9 Heisk., 823, the injured party was drunk and walking on the track toward the engine.
In Railroad Co. v. Foster, 88 Tenn., 676, 13 S. W., 694, 14 S. W., 428; the party injured was Aval king upon the railroad track, and Avas overtaken by a freight train and struck and injured.
In Railroad Co. v. Wilson, 90 Tenn., 271, 16 S. W., 613, 13 L. R. A., 364, 25 Am. St. Rep., 693, the person injured was at the time drunk and asleep on the track.
In Railroad Co. v. White, 5 Lea, 540, the person injured was lying outside of, but close to, the rails of the track with his head between the ends of the cross-ties. While in this position, he was struck and injured by a passing train. Elis injuries were not fatal, but a judgment in his favor for $1,000 was affirmed by this court.
It is not for us at this late day to declare a new public policy for the State, or, by construction, to emasculate the statutes which hare so often been recognized by this court as declaratory of that policy.
In this view of the question, we think the action of the circuit judge was correct in declining to grant the special charge requested, and this conclusion overrules the per curiam opinion in the Abbott Case.
The second question presented is that there was no evidence to support the verdict of the jury. If the jury credited the evidence on behalf of plaintiff, it was warranted in finding from that evidence that between the point where the engineer could first have seen the plaintiff sitting on the track and the latter point was a distance of one-half mile, and between the two points the track was straight and without obstruction to the view of the engineer. "
The jury evidently gave credit to the evidence on behalf of the plaintiff. We think it is clear from the proof that the jury might well have concluded from all the evidence that the engineer and those servants of the company in charge of the train did not observe all of the precaution's required by the statute which it was possible for them to have observed. Such was the inevitable conclusion, if the jury believed the evidence on behalf of the plaintiff, and did not credit the conflicting evidence on behalf of the defendant, and, in this view of the case, there was clearly some evidence to support the verdict.
Let the petition for certiorari be dismissed, and the judgment of the court of civil appeals affirmed.
