Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-20

OPTICAL.
CPInISns OF the Supreme Court of the State
OF Tennessee, at Jackson, April Term,
1850.

OF Tennessee, at Jackson, April Term,
1850.
The Memphis and Ohio Railroad Company vs. Thomas c.
Horne.
The Code, at sec. 1886 in order to prevent acct
dents upon railroads. requires that certain precau-
tions shall be observed: and in the succeeding sec
tions defines what shall be the liability of railroad
companies IS they may or may not observe, or
caused to be observed, these precautions by their
agents and servants and declares that the proof Of
their observance shall be upon tie company And
in Sec 1859 it is enacted that when railroad com
pany is sued for killing or inuring stock the bur-
den ofprOof that the accident was unavoidable shall
be upon the company; and the engineer. agent,
employee OF the company shall in no case, be wit
ness for it.
The question here is as to the force to be given
to that part of the above statute which prohibits the
engineer agent or employee Of railroad company
from becoming its witness; and which was taken in
to the Code from the act of the I'd of March, 1906
ch A, the competency of a,witness in such case
anterior to that time-being determinable entirely
upon common law principles.
1t also becomes necessary in this connection to
consider the clause placing the oa'S probandl upon
these corporations
The accident-namely the killing of the of
the defendant in error for which the present action
is brought occurred according to the bill Of excep-
TONS in August or September, 1851 and If need be.
we think it might be readily shown that this act OF
Assembly cannot have a retrospective construction,
to embrace this Il is only requisite that
we refer to Dash VS.. Van Keeck, Johns, 47S. and
the authorities there cited establish this PROPOSE
ton. But as we have before us other cases. coming
directly within these provisions of the Code, it be-
comes proper that we give them a construction.
The power of the Legislature TO pass them has been
denied but in order determine whether any
stitutOna question be raised it is first necessary to
affix to them meaning, and in doing so, are to
remember, that If there be doubt as to their true
Interpretation that construction to be taken which
shall be found in harmony with the Constitution.
The rule that after it has been established by evil
dence on the part of the plaintiff that his stock has
been killed or injured by the railroad company, the
OIsLs proband is thrown upon the defendant, we do
not understand to be new. 1t is simply the an
nouncement of a common law principle. In Chris
tie Griggs Campbell, rs, it held that proof
of the injury to the plaintiff threw upon the defend
ant the burden of showing that he had exercised all
| the care which he was bound to do.
In Stokes vs.. Saltonstall Is Peters, Isl, which
was an action for injuries to passenger occasion
ed by upsetting stage-coach, the Court laid down
the rule as to the burden of proof in the following
languages: 1.-THE facts that the carriage was upset,
and the plaintiffs wife injured, prinG facie evil
denee that there was careessness. or negligence, or
want Of skill the part of the driver, and throws
upon the defendant the burden of proving that the
accident not occasioned by the drivers fault.
1t beng admitted that the carriage upset, and
the plaintiff wife injured it is incumbent on the
! defendant to prove that the driver was person of
competent skill, of good habits and in every respect
qualified and suitably prepared for the business in
|
occasion, with reasonable SKILL and with the utmost
prudence and caution; and if the disaster in ques-
ton was occasoned by the least negligence, want
OF skill or prudence his part then the defendant
| is liable In this action"
This rule as to the burden of proof was applied
to railway companies in Carper vs. The London and
Brighton Railroad Company, 50 D., 747 and also in
Skinner The London and Brighton Railroad Com
pany, 2 Eng. Law and Eng. Rep. $50. So. also, in
| Ellis VS.. The Portsmouth and Roanoke Railroad
1 , IpaHan b,g loc+ -
damage to the plaintiff s fence by fire caused by
| sparks emitted from the defendants engine.
The precautions which this statute requires rail-
way companies to observe in order to prevent the
! destruction of human life and property impose, as
| we believe, no new or additional duties over and
| above what the common law of this State. when
applied to their operations, demanded and certain
ly none but such as are reasonable and within the
power of the Legislature to enact. Redfeld on
| Railways. sec. 1872 and cases cited in note.
What then. we to understand by the clause,
q and the engineer, agent. employee of the COM
| pany shall, in case, be witness for it?' Did
the Legislature intend to render incompetent all
gineers. agents and employees of the company,
| whether the matter drawn in question involved
| their carelessness and negligence or not or only
| such as were directly interested by means Of being
thus implicated? If the latter be its true meaning
as we think it is, then it simply affrms common
| law principle. In an action against the principle
for damage occasoned by the neglect or misconduct
of its agent servant the latter is not a compe-
tent witness for the defendant. without release
for he is IN general, liable to his master, or
employer, in a subsequent action to refund the
| amount OF damages which the latter may
have paid The principle of this rule applies to the
| relation of master and servant, employer and
agent, whenever that relation in broadest sense
may be found to exist for example. to the case of
pilot IN action against the captain and owner of
a vessel, for mismanagement while the pilot was IN
charge; or Of the guard of a coach, implicated in
| the late misnanagement, in action against the
| proprietor The doctrine Is applied to railway
| companies and TO corporations in general. Perhaps
| the most direct authorities upon the case now in
| question will be found to be Green VS.. The New
| River Company, T. R., $780, and Draper VS.. The
! Worcester and Norwich Railroad Company Am.
Railroad Cases, COZ But the principle is support
ed by decisions noticed by Mr.. Greeneaf,
in his work on Evidence, at sections 1874, 4l6, and
All, from which, and the two cases before quoted,
it will be that the class of cases we are now
| consderng-namely.s such as implicate the engineer,
agent, employee, in carelessness and negligence
does not fall within the excepted cases. grounded
public necessity and convenience, where an agent or
| servant may called to prove acts done for his
! principal in the usual and ordinary course of his
| employment.
Having thus shown the extent to which the COM
| mon law goes in excluding witnesses, engineers,
! agents and employees. next proceed to show
that the statute in question cannot upon any proper
rule of construction be held exclude any witness
other than the particular engineer. agent, or EN-
ployee whose tortious act, Tor acts, If more than
one be mpliCated) or Carelessness and negligence,
are drawn in question in the cause, and in respect
of which he would be liable over the railway Com
| pany, if the latter should fail in the action.
1t is well established rule of construction that
when the provision of statute is general it is sub
| ject to the control and order of the common law
| In all doubtful matters. and when the language of
statute is expressed in general terms it to receive
such construction may be agreeable to the rules
of the common law case of that nature for it is not
| N he he
father otherwise than the act expressly declares
| ii would have so said. This is especially so as to a
statute against common right, repugnant to
reason. Bac. Alb. Title Statute Il Sec A. Blac
81; SEQ, IISd.; l Bay, SO; Murphy, 3l4; Hum.
| 1885, 3 Sneed, 404; 2 Yer, COZ. Many of these au-
thorties hold that far statute may be against
the plain and obvious dictates of reason, it is be
adjudged void. And though we may not be able to
to this doctrine, when statute is clearly and
unequvocally expressed. and is in accordance with
the Constitution yet such construction does al
ways afford powerful argument in support of the
conclusion that the Legislature intended no such
absurd and unjust consequences.
With these authorities before US, we cannot say
that a new rule of evidence was to be introduced,
whereby multitude of persons, before competent,
were rendered unfit to be witnesses. Perhaps the
most natural and obvious construction of the act is
the one we have adopted. 1t does not say that all
engineers, agents and employees of the company
shall be inadmiSsable; but uses the language the
engineer, agent employee" referring, is most
probable. from examination of the entire act
only 10 the particular engineer, agent or employee
implicated in the carelessness and negligence which
CAUSED the accident If this be not its obvious
meaning, certainly are authorized to say its lar
guage is too general to produce violent change
of the common law as is claimed for it. What rea-
son can there be for supposng that the Legislature
intended to exclude employees who might be at
tending to the wants of the passengers the affairs
of the cars-the porter, the baggage-master, and
the many other nameless agents engaged daily in
the service of the company but having no nstru-
mentality in giving impetus direction to the train
that did the mischief? Why make distinction be-
tween railway companies and corporations, be-
twixt them and natural persons, as to the cOmpe
tency of proof?
We can suppose no valid reason for so doing. and
nothing short of the most direct and unequivOcal
expressions would justify such construction.
Ifthe relation the witness sustains to the company,
and not his interest is 10 be the test Of his compe
tencv them all that bear that relation, at the time
they come to testify, will be excluded as witnesses,
though they were not in the service of the company
when the accident happened. And on the other
hand such as may have ceased to be in the service
will thereby, become competent Can this be the
meaning of the Legislature? We think not. Upon
the same reason and authority, we think the COM
mon law rulc, that enabled party to make Wit |
competent by release, is not interfered with by
thu statute 1t is said in terms and there is
inc ,ybip oh We opnf m