Railroad v. Abernathey

Caldwell,’ J. The Illinois Central Railroad Co. prosecutes this appeal in error from a judgment in favor of J. M. Abernathey for $40, as damages for the alleged wrongful killing of a cow and yearling. In considering the first assignment of error, which is that there is no evidence to support the verdict, this Court takes ' as true' the strongest — 724 — legitimate view of the testimony in favor of Aber-nathey, and discards all countervailing testimony, because the j ury, whose exclusive province it was to pass upon the credibility of witnesses, has by its verdict resolved all conflicts in his favor. Citizens’ Rapid Transit Co. v. Seigrist, 96 Tenn., 119: Railroad v. House, 96 Tenn., 552; Machine Co. v. Compress Co., 105 Tenn., 187; Nighbert v. Hornsby, 100 Tenn., 82; Railroad v. Ginley, 100 Tenn., 472. In the first place Abernathey, by his own testimony and that of other witnesses, shows that he was the owner of the live stock in question, and that through passenger trains of the company going in the same direction, ran upon and killed the cow and the yearling, respectively, on different days, but near' the same point within the limits of the station, at the village of Curve. The company virtually concedes these facts, and defends the plaintiff’s action alone on the alleged ground that the animals appeared upon the track so suddenly and so near the rapidly moving engines as to render the collisions with them unavoidable. The engineer and fireman in charge of the locomotive that ran upon the cow, testify, in substance, that, she was stricken at the moment of her appearance upon the track, and, hence, that no statutory precaution was or could have been observed. Upon this theory there could be no. lia — 725 — bility for killing the cow. Railroad v. Thompson. 101 Tenn., 200. But Abernathey testifies that he at once discovered continuous foot-prints, which he, for good reasons stated, believes to be those of his cowr on the track for a distance of seventy feet immediately preceding the place at which the collision occurred, and that she could easily have been seen from the pursuing locomotive at least 300 yards back of the point at which she stepped upon the track. This testimony, rather than that of the engineer and fireman, being accredited by the verdict as-it is, must be taken as true, and being true it makes a case in which the statutory precautions might and should have been observed. Their observance was possible under Abernathey’s theory of the facts, and being possible it was required by the positive mandate of the statute (Shannon’s. Code, § 1574, Subsec. 4), and nonobservance rendered the company liable for ' the value of the cow. Ib., § 1575. The testimony introduced on the other branch of the case likewise shows that the yearling, if' then on the railroad track, could have been seen from the locomotive for more than 300 yards back of the point at which they collided, but there is no proof of the presence of this animal’s: foot-prints along the track. The engineer and fireman say the yearling ran — 726 — ■on to the track very near the front of the engine, and that they had only time to cnt off the steam and apply the air-brakes, which they did promptly. No one states anything to the contrary on his ■own knowledge, but the plaintiff and some: of his witnesses say that they heard the engineer testify ■on a former trial, and they understood him then •to say that the appearance of the yearling upon the track was such as to render it impossible to ■do anything towards checking or stopping the train, ■and that in fact nothing was done. These two views of the matter, that presented by the defendant on the last trial and that said to have been presented by it on the former trial, •are in plain conflict-; yet neither of them, con■sidered as a whole and alone, affords any support for the conclnsion of liability on the part of the defendant for the value of the yearling. That •conclusion can be supported only by rejecting a part of each view, and then combining balances ■of both, so as to get from one the assertion that there was time to shut off steam and apply air-brakes, and from the other the assertion that nothing was in fact done. Though somewhat novel on account of the peculiarity of the conflict, this process of elimination and combination was within the legal province of the jury, and the conclusion of liability reached thereby is a legitimate one from that — 727 — •standpoint, not subject to review and avoidance in Ibis Court. It is said against the amount of the verdict that- it is less than the aggregate value of the two animals and more than the separate value of ■either of them; and, therefore, that there is no •evidence to support the verdict in its amount. The verdict is in general terms for $40 as the plaintiff’s damages in solido, when in fact he testified that the cow was worth $35 and the yearling $15, in all $50, and no witness places a lower valuation on either animal. It- is clear, then, that the verdict is less by $10 than it •should have been if the intention was to include the value of both animals; nevertheless, as that error or mistake was against the plaintiff only, it affords the defendant no legal ground of complaint. Tf, on the other hand, the jury intended to return a verdict for the cow only, the amount, if $5 more than the owner’s valuation, and from that point of view, nothing else appearing, there would be an error against the defendant. In reality, however, two other witnesses say the cow was worth $35 or $40, and on that testimony the jury was authorized, in its discretion, to adopt the higher figures as representing her true value. This suggestion answers the objection that the verdict, if intended to fix liability for the cow alone, is excessive. — 728 — The record, though not purporting to give the language of the verdict, indicates that it was the purpose of the jury to include in. the sum returned the valuations by it placed on both animals: but, however that may have been, there is-nothing in either view, as has been seen, to “affect the merits of the judgment” as against the defendant, and consequently nothing to justify a reversal. Shannon’s Code, § 6351; Maddin v. Head, 1 Lea, 664-; Pearce v. Suggs, 85 Tenn., 724. The fencing statute does not apply against the company in this action, because the collisions in question occurred within the limits of the station grounds; but the statutory precautions do apply, notwithstanding the place of the collisions, because the animals were hilled by through and not by switching trains. Railroad v. House, 96 Tenn., 552. The second assignment of error, which is that the verdict “is contrary to the great preponderance of the evidence,” presents no question that . can be considered by this Court. Felton v. Clarkson, 103 Tenn., 457; Kirhpairick v. Jenkins, 96 Tenn., 85; Cherokee v. Hilson, 95 Tenn., 2; Poole v. Jachson, 93 Tenn., 62; Railroad v. Henley, 92 Tenn., 208. Let the judgment be affirmed.