Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-03-11
, sUPREnEoOURT.
Decision OF Supreme Court at
Nashville, February, 1869. s

4 AAONA hS EAOLAA NAAC = eA OeNoI 6RSS1
along a short curve through q deep cut,
near the southern end of the curve and
cut. At q point Visible to the approach
Jog train, at q distance of about yards
Burk was lying upon the track motion
less and testimony was given tending
to prove that he wSs drunk. EHsrts
we're made by the engineer and hands
upon the train, as soon as Burk was dis
covered, to stop the cars and prevent the
accident. A conflict or uncertainty of
evidence appears in the record to the
question whether the engineer, fire.
man or other person on the loco
motive, was upon the lookout
and discovered Burk upon the
track, as soon as it was possible to see
him, and whether the alarm whistle was
forthwith sounded, and the brakes put
down, and every possible means used to
stop the train and prevent the accident.
Burk was o common IabOrer in the
! employment of the company, and had
been sent by the I" boss workman on
that section of the road, to proceed up
the track ard with his pick to tighten
the joints OF the rails, until he reached
Hendersonville, where be was to help
repair a switch. He delayed and failed
to go TO HeEdersOnville, from which
town a short distance the accident oc-
cured.
The action is brought by Margaret
Burk, the Administrative of the d~ecedent,
suing for the use Of his widow and
children.
The declaration is in the s~tatutsry
form, and alleges that the train of cars
of the defendant, the Railroad Company,
{" wrongfully, and by gross negligence,
ran over and instantly killed Burk,"
laying the damages at $40, 600.
The plea OF "not guilty" was
put in by the defendant, and
upon this issue the parties went to
the jury, who found a verdict of $4,000
against the defendant, on which judg-
peal in error brings the whole case to
this court.
The errors assigned are to be found in
the instructions of the Circuit Judge to
the Jury:
LIST. The instructions, though not very
clear TO the point, are to be understood
as directing that damages are ree0veTs-
bic, suffered by the widow ana children,
by reason of the killing of Burk, the
husband and father.
I'd. The instructions, giving to the
language the full breadth fairly TO be IN
derstOOd from the words, directing the
Jury that the defendant, railroad COM
pauy,) under the clause upon the SUBJ
ject enacted by the Code, is liable for all
the damages oeeasioned by or resulting
from the collision or accident, unless it
be shown by the proof that the engineer,
fireman or other person was, at the time,
on the locomotive, and on the lookout
ahead, and discovered Burk as soon
as it was possible to discover him, and
-, &C.,. - ls,z--.- A. -
whistle was sounded, the brakes put
down, and every possible means used to
stop the train and prevent the collision or
accident.
Aud this, although IL was negligence
of Burk to be on the track in his con-
dition, and although the accident or col
lision was not caused by, or the result OF
the omission of the precautionary acts
prescribed by the Code, and would have
occurred though the precautionary acts
had all been performed.
The Court will do no more now, than
indicate the conclusion adjudged upon
the case. An opinion in full will be
prepared hereafter.
let. The damages recoverable, are those
suffered by Burk, and which he could
have recovered had helived; and not those
suffered by his widow and children in
consequence of his being killed.
Such is the proper. construction to be
put on the Code, sections 229l, 1892, 1898.
The cause Of action is the injury done
to Bark and theright of action Of the
personal representative, is for that ca use
OF action and is the right Of action.
Burk had and could have prosecuted had
lived ; and the damages recoverable
are for that cause OF action.
M B.. -, ~ Ill., G4nNa. -nIsal |
been cited in argument, similar but
the same as that Of Tennessee,
either by express terms or plain impli-
give the next of kin a right of
or damages, for the injury done
them by the injury done to DRILLING of
the father, husband or other relation.
The statute OF Tennessee goes no far
Their than to give the next of kin the
damages that may be recovered by the
personal representative, for the injury
Tone his decedent.
%. The proper construction of x ll67,
ll6S, etc, Of the Code is: The railroad
company is responsible for the damages
o~ceasioned by or resulting from the acct
dent or collision unless it be shown by
proof, that the precautions prescribed by
sections were performed and al
though It may appear that the accident
or collision would have occurred had the
precautions been performed, cases of
hardship and absurdity may occur, upon
such construction OF the clauses of the
Code but the language is explicit and
certain, and the construction is inevi-
table.
Sd. These sections are not invalid, for
want OF Constitutional or sovereign pow
er, in the Legislature, to enact the law
expressed by them.
The statute is founded on a policy Of
aspect One, to guard and pro-
teCt the safety OF the general public and
the other, to compensate the injured per-
son, and has sanction in what is called
the police power OF the Government.
4th. Corporate bodies are subject, as
persons, to general laws, enacted
to protect and promote the quiet, COM
fort, health and safety of the people
unless exempt by reason OF express stipu-
.aticn in their charters, or by reason of
plain implication from the nature Of the
privileges OK franchises granted by
their charters. In the absence Of
such exemption, railroad corporations
are subisct, Us would be natural, persons
In like occupation, to laws prescribing
extraordinary vigilance, skill, exertions
and other precautions, to be observed by
their servants or agents in tho running
Of trains, for the purpose of preventing
accidents or collisions; and subjecting
the companies to danger occasioned by
or resulting from any accident or COLI
sion unless they show thai the pre-
precautions were performed.
5.h. The negligence of Burk, contrib
utiDg TO the accident, is not a bar to the
and this by virtue Of the section
1lG6, etc, of the C.ds.
Generally the negligence of q person
by collision upon the track, is not
a bar to m action by him for damages,
the railroad company show by
proof that sill the precautions prescribed
by b e7Code, were performed to prevent
the accident.
9Th. A person injured by q collision or
accident, caused by his own willful act,
cannot, by virtue Of the sections lI66, |
l167, etc., maintain an action for s dam
age done him, occasionei by or resulting
from the collision or accident.
7th. The sections ll66, 1857, 1l6S, ETC.,
have reference and application, so far
as they relate to sections for damage, to
the general public rather than to the
agents and servants employed in the
running Of trains. An action will not lie
behalf of an agent or servant of that
kind, whose negligence or wilIful act
caused or contributed to cause the acct
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