106 Tenn. 242 | Tenn. | 1901
This is an action commenced before a Justice of the Peace. The warrant states the cause of action as follows: “To answer the
In tbe Circuit Court, on appeal, tbe cause was beard before tbe Court and a jury, and at tbe close of plaintiff’s evidence it was demurred to,- and issue was joined on tbe demurrer, and it was sustained and suit dismissed, and tbe plain-tiff bas appealed and assigned errors.
Tbe bill of exceptions states that after tbe jury had been regularly impaneled and sworn to try tbe matters in controversy, tbe plaintiff, in response to an inquiry by tbe Court, said in tbe presence of tbe' Court and jury that bis cause of action was for tbe wrongful killing of plaintiff’s horse by one of defendant’s moving trains.
Thereupon attorney for defendant, in response to an inquiry from tbe Court, stated that bis-defense was, that defendant bad observed tbe precautions required by tbe statute. Tbe plaintiff then-introduced two witnesses who testified to substantially tbe same facts, . as follows: That plaintiff lived at Goodlettsville, Tennessee, about 600 feet-from tbe depot, at a place where tbe public road-crosses tbe railroad. Tbis public road is a turn- ■ pike going from Goodlettsville to Gallatin. It ' crosses tbe railroad track running north and south; - that plaintiff lives on the west side of tbe rail- ¡ road and. on tbe north side of tbe turnpike. One of tbe side tracks comes down to within a short distance of tbe turnpike crossing; that'
There is a cattle guard' at the south side of the turnpike,’ where the railroad crosses it, and the horse was found -dead beyond this cattle guard. The horse was worth $Y0. Plaintiff did not see the accident, nor know of it until he returned home. He turned the horse out to graze that morning. Plaintiff was in the habit of turning his horses out on the commons when not in use. The stable is just back of the house, and towards the depot. The horse was fifty or sixty feet from the fence, and south of the turnpike, and a few feet from the railroad track, lying in the ditch.
Mr. Peed, the section foreman, went with plaintiff to see the horse. Isaac Drake and plaintiff’s brother, John Htley, also saw him.
Plaintiff told Mr. Peed, the section foreman, that in order to settle the matter he could report the horse as worth $45 to the company. He agreed to Mr. Peed’s valuation, thinking he would get his money right away, without any trouble. Horse was fifteen hands high, gentle, sound, and all right. In substance, this was all the evidence.
It is insisted on the part of the defendant, railroad company, that this evidence does not make out a case of liability on the- -part of the rail
It is insisted on the plaintiff’s part that .the controverted questions in the case were narrowed, by the. statements of counsel, to the simple question presented by the defendant’s statement. In other words, that when the plaintiff said his cause of action was the wrongful killing of plaintiff’s horse by one of defendant’s. moving trains, and the defendant replied that its defense was that it had observed all statutory precautions, it was an admission on the defendant’s part that one if its' moving trains had killed the plaintiff’s horse, and the only matter in issue left was whether the killing was wrongful, and this defendant denied by stating that it had observed the statutory precautions. The insistence is, that the case having originated before a Justice of the Peace, where there were no formal pleadings, the agreement
The statements having been mad©, the controverted facts must be treated as being embraced in and bounded by the limits of the statements, and
It is said by counsel for defendant that neither Court nor counsel considered the statements as constituting pleadings in the case, and subject to the rules of pleading, and that this is evidenced by the fact that the plaintiff, notwithstanding the statements^ proceeded to introduce evidence on many features that were conceded by the statement of defense, . treating it as a pleading. It is true that some evidence in this ease was introduced by the plaintiff, which was wholly unnecessary, but if this be conceded, it does not vary the rule, but the unnecessary evidence may be treated as immaterial.
Indeed, on the part of plaintiff there was but little, if any, necessity for introducing any proof except as to value. The ownership was not denied, and must be considered as conceded. The killing by defendant’s train was not denied, .and must be treated as admitted, and by the shape of the defendant’s statement it must be inferred that under the circumstances of the killing it was necessary to observe some statutory precautions, and that they were observed is alleged as an excuse for the killing, and a reason why no liability should attach.
To allow a different holding of the case would operate as a surprise and hardship on the plaintiff. The cause has been heard in this Court at
We are of opinion that in tbis view of tbe case the Court below was in error in sustaining tbe demurrer, there being sufficient evidence to fix a liability on tbe 'road and. no proof that any, statutory precautions were observed which would relieve tbe defendant therefrom, and that being, in our opinion, tbe only matter of controversy left open by tbe statements, tbe judgment of the Court below must be reversed, and tbe cause remanded for an assignment of damages on tbe evidence, unless tbe parties shall agree upon tbe same, and in ' that event final judgment will be rendered here.
■ The defendant will pay all costs.