Railway Companies v. Foster

Caldwell, J. 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 — 673 — action against the plaintiffs in error, claiming $10,-000 damages. She obtained a judgment for $300, and the defendants below have appealed in error. 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 — 674 — more accurately define, some proposition already submitted to the jury. 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 — 675 — osition submitted for charge, recites that the request was' “refused and the Court did instruct the jury as follows:” As a matter of fact, nothing folíenos, and the bill of exceptions remains in that incomplete condition, failing to show what instructions were given instead of those requested. So far as we are informed, they may have contained a full aud accurate statement of the law applicable to every question arising in the case. Whether this be true in reality cannot be ascertained, but it must be presumed to be so in the absence of those instructions themselves. Lane v. Keith, 2 Bax., 189; Insurance Company v. Sturges, 12 Heis., 339. 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 — 676 — question of the jury in the affirmative. Taking the case as stated in the question, the' contention is that, inasmuch as the gross neglect of the deceased was the direct cause of his injury and death, his negligence should operate, not merely in mitigation of damages, but as a bar to the action, notwithstanding the failure of the railroad employes to observe the precautions prescribed in § 1166 of the Code. 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 — 677 — bility is made to depend on the cautions or incautious conduct of the person ^injured; both are to be determined by the conduct of the r*ailroad’s employes. The injured person may be ever so negligent in the one case- and yet recover something, while in the other case he may be entirely without negligence and yet recover nothing. 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 — 678 — botli counts, the difference being, however, that contributory negligence does not defeat the action under the first count, but only mitigates the damages; whereas, under the second count it might defeat the action altogether.” 9 Lea, 474. 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 — 679 — the party suing, be it ever so gross. On the other hand this Court has held that although the railroad may he and is liable because of failure to comply with the statutes, yet the contributory negligence of the party suing will go in reduction of damages.”. 1 Lea, 528. 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 — 680 — the accident would be no bar to the action;” that the only means of escaping liability was by showing that “the precautions laid down in the Code, §1166, subsection 5, were observed.” 6 Heis., 176, 177. 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.