Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1854-01-20
OPINIONS OF THE SUPREME COURT.
REPORTED BY D. R. CLAIBORNE, ESQ.

REPORTED X. CLAIBORNE, ESQ
Nashville and Chattanooga Railroad Company, Us
JOHN MAssIzo. Opinion by Judge CARUFHERs
LAW OF COMMON CARRTERs-EvIDENCE--
This 9ction was brought to recover damages for q
serious injury sustained by the defendant in err
Tor, passenger, from collision with COW, which
threw off the in which he riding. The
road was incomplete, and only used part of the
way from Nashville to Murfreesboro'; merely to
facilitate the construction of the road by transpor
ting the iron and other materials from the termi-
nus at Nashville east as they progressed with the
work But freight and passengers were received
and carried for pay regularly and without refusal
No solicitation of passengers by public notice in the
newspapers or by handblls, had been made except
for Sundays; but rates of charge had been fixed
and none who applied to be carried were refused
The arrangements for passengers were very indf-
ferent and parts Of the road over which they ran
in an unfinished state, that the pilot or cow
90 catcher could not be attached 10 the locomotive
This is regarded as precauton almost indispensa-
BILE in this country, and without which the danger
of accidents, like the one which occurred in this
case, is very imminent
The Jury in consideration Of all the facts present
ed in the proof found verdict in favor of the de-
PENDANT in and assessed his damages at S500O
1t is not insisted that for excessive
damages, or upon the ground of preponderance of
evidence against the verdict, as there is proof to
sustain it.
1t is becoming more and more important every
day that the duties and liabilities of common car
riers should be well understood by them and the
public. The lives OF citizens well as their pro
perry committed to their keeping. The appal-
hug disasters that are so frequently occurring, ex-
cites a general desire and expectation that the
puts will hold them to that care and diligence
which the law prescribes for the safety and pro-
lection Of all persons who extend to them their
patronage. The rules on the subject well de-
fined and settled with view to the mutual adj
vantage Of the parties.
If they were not sufficiently rigid to guarantee
safety to the citizens the carrier would lose
poyment and tall to make profit enough to author
ize the great expenditure and hazards attendant
upon his undertaking. SO it is manifesly to his
interest as well as that of those who avail them
selves Of the facilities he affords for travelling and
transportation that the most perfect safety should
be secured But on the other hand the rules of ac-
countabity should be reasonable that men may not
be deferred from devoting their time, capital and
energies 10 these very useful and now almost in
dispensable enterprises The law on the subject Is
wisely adapted to the accomplishment ofthese ends,
and the promotion Of the best interests of all con-
cerned. 1t is laid down correctly, as We think by
his Honor the Circuit Judge in his charge TO the
Jury in this case He says in substance "a com
mon carrier OF passengers is one WHO undertakes
for hire to carry all persons nditferently who may
apply for passage. 1t Is not essential that the fare
should be paid advance, or rendered to establish
the relation and reciprocal duties and liabilities of
carrier and passenger. To constitute one COM
mon carrier it is necessary that he should hold him.
self out to the community such. This may be
done, mot only by advertising, but by actively
gaging in the business and pursuing the occupation
as an employment IL is not however every carry
ng of passengers for hire that constitutes party
a common carrier 4 party having the convent
noes for carrying persons, may in some or perhaps
many cases, carry passengersfor hire, when done,
at the Instance of the Passengers and for their
commodatlon without mourning the responsibilities
of common carriers
There would be private carriers, and be account
able under rules much less stringent. when
railroad Company engage IN the business OF COM
mon CARRYING they undertake that the road Is In
good travelling order and fit for use and that the
engines and carriages employed are Ioad-worthy,
and properly constructed anu finished according to
the present state of the art and If injury results
from the mperlections OF the roads, the carriages
or the engines, the company are liable unless the
imperlectiun was of character in no degree at
tnbulabe to their negligence. They are also bound
for due application on the part OF their servants
and agents of the Necessary attention, art and skill;
and if the injury to the plaintiff might have been
avoided by the utmost degree OF care and skill on
the part OF the agents servants of the company,
hey are liable"
He further charges that if the injury occurred by
uuning faster than prudent, sktul conductor
would have run, on that part OF the road or on &C
count Of coming in collision with an obstacle which
the conductor saw or might have seen ii he had
been looking in proper direction, or which he
might have avoided by the most sklllfu and prompt
use of all the means IN his power, the defendant
would be liable.
In this charge we see no error; and the jury hav-
no tound the defendants liable as common carriers
under correct exposition of the law N reference
20 the facts, we cannot disturb their verdict, al
hough we might differ with them in conclu-
sions upon the facts.
1t is however, urged that the charge is not
full enough although it Is correct far as 1t goes.
We have several times announced the rule that
we will not reverse on this ground where there is
ne application for tie eXtentiou OF the charge. The
court must be put IN the wrong by charging what
is not law or refusing upon request TO charge the
whole law applicable to the facts of the case.
Ii is again insisted that the court erred on que5-
tons of evidence He permitted the plaintiff to
prove that the engineer IN charge of the engine on
that day was heard to say either before or after the
accident, chat he would make his engine make the
time or blow her to hell TINS remark was made
bv one of the agents OF the company IN connection
with his employment, and might be circumstance
10 show his rashness or uniness for so important
position and tend to prove the cause OF the dIsas-
ter Whenever 1t IS admissible to prove what an
agent did it is competent to prove what ne SAID
about the act while ne doing it / Greenleat
u. ZI3 We cannot say that it was an improper
circumstance to go to the jury, nor that they per-
mitted il to have any undue influence upon their
minds as bias been argued.
Again it sobiected, that the court refused to per-
NIT the defendant to prove the account given by
the engineer to his chief in half hour afterwards,
oftLe manner and cause Of the accident. This was
not part of the res geSte, and therefore iucompe-
tent The Judgement will be affirmed.
THE MAILS. ..rH
A gentleman a citizen Of Virginia, now on a
visitto Tennessee, addresses us private note, on
the condition Of the mails etc, from which we
make the following extract
The mails are indeed in "a sad condition in al
Quarters of the country, so far as my observation
-. Lanr : L..