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C. C. Smith, Adm'r, etc., for the use, etc., vs. Nash. & Chat. R. R. Co.

C. C. SMITH, ADM'R, ETC., FOR THE USE, ETC., v8. NASHVILLE & CHATTANOOGA RAILROAD COMPANY.

1. RAILROADS. Damages. Burthen of proof upon the road. In an ac'ion against a railroad company, for damages resulting from an accident on its road, the burthen of proof is on the company, under sec. 1167 of the Code, to show that the precautions therein required were observed. And if the proof does not show that the precautions were observed by the company, it will be responsible for all damages to persons or property, occasioned or resulting from any accident or collission that may

occur.

2. SAME. Same. Charge of the Court. If there is no such evidence, it is error in the Court to charge the jury, "that if the deceased was the occasion of accident through want of ordinary and reasonable care and prudence, the plaintiff c uld not recover."

FROM MARION.

At the March Term, 1868, there was a verdict and judgment in this cause, in favor of the Railroad Company; the plaintiff appealed to this Court. Judge WILLIAM L. ADAMS, presiding.

N. H. BURT, for plaintiffs in error.

KEY, EAKIN & KEY, for the Railroad Company.

ANDREW MCCLAIN, J., delivered the opinion of the

Court.

This is an action brought by Charles C. Smith, as the administrator of John Smith, deceased, for the use

C. C. Smith, Adm'r, etc., for the use, etc., vs. Nash. & Chat. R. R. Co.

of the widow and children of the deceased, against the Nashville and Chattanooga Railroad Company, for injury done the said deceased, which produced his death.

The deceased was met on the road of defendant, by one of the witnesses, near a railroad bridge which was across a small stream. This was early in the night, about 8 o'clock. Witness and deceased were going in opposite directions when they met on the railroad. Witness passed on and went to a house about one mile off from where they met; after transacting some business at this house, witness returned to the same place where he had met deceased, and while there a construction train of defendants passed, going in the same direction Smith had gone.

This was about an hour or an hour and a half after he had met deceased.

This train had no head that he remembered of. The deceased was found

light, and blew no whistle The train was moving fast. dead on the road next morning within one mile of the place where witness had met him, his body showing unmistakable evidence that he had been killed by the train passing over him. Deceased was a little

drunk when witness met him.

This construction train was the only train that passed on the road at that point that night. The deceased was killed at a curve in the road. With a head light, he could have been seen at a distance of one hundred or one hundred and fifty yards at this point. The train was moving at the rate of twenty or twenty-five miles per hour.

C. C. Smith, Adm'r, etc., for the use, etc., vs. Nash. & Chat. R. R. Co⚫

This is about all that can be gathered from the evidence touching the manner of the killing of the deceased.

The Court stated to the jury, that it is a general rule of law, that, when there is negligence on the part of the plaintiff, or those through whom they claim, no recovery can be had; that a party shall not recover for an injury brought upon himself by his own want of reasonable care and prudence, or which his want of ordinary and reasonable care contributed to produce, or where the parties must be viewed as equally culpable; but both parties might be in fault in omitting the exercise of proper diligence, but not equally that he should be considered as the author of the mischief in such cases, by whose first or more gross negligence it has been effected; that if the deceased was guilty of the first gross negligence, or brought the injury on himself by his want of ordinary care and reasonable prudence, or if his want of ordinary care contributed to produce the result, then the plaintiff could

so;

not recover.

It

The jury returned a verdict in favor of the defendant, and the plaintiff has appealed to this Court. is manifest that in these instructions, His Honor wholly overlooked the statutory provisions in reference to the duty and liability of railroad companies in such cases.

Among other duties imposed by law on railroad companies, sub-sec. 5, of sec. 1166, provides: Every railroad company shall keep the engineer, or some other person upon the locomotive, always upon the look

C. C. Smith, Adm'r, etc., for the use, etc., vs. Nash. & Chat. R. R. Co.

out ahead; and when any person, animal or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident.

Sec. 1167, provides, that every railroad company that fails to observe these precautions, or cause them to be observed by its agents and servants, shall be responsible for all damages to persons or property occasioned by, or resulting from any accident or collision that may occur.

The next section provides, that the proof that it has observed said precautions shall be upon the com

pany.

It will be observed, that the language of sec. 1167, is not that the company shall be responsible for damages that are caused by the failure to observe these precautions, but if damages to persons or property are occasioned by, or result from, any accident or collision that may occur whenever the company fails to observe these precautions, the liability of the company attaches, and the proof that it has observed said precautions shall be upon the company. So the inquiry is not whether the accident was produced through a failure to observe these precautions, but, was the company in the observance of these precautions at the time the accident occurred; and the burthen of proof is on the company, to show that it was, and if it does not SO appear, the company is liable.

There is no evidence in the present cause tending to

Henry H. Sutton vs. Henry C. Tiller.

show that the company was in the observance of these precautions, prescribed by law, at the time this accident occurred.

It was error in the Court to tell the jury, upon this state of facts, that if the deceased was the occasion of the accident, through want of ordinary and reasonable care and prudence, the plaintiff could not recover.

Let the judgment be reversed, and the cause remanded.

HENRY H. SUTTON vs. HENRY C. TILLER.

1. STATE OF War. By whom decided to exist, Political department of the Government. Judicial knowledge of the Court. The question, whether or not war, in its legal sense, exists, is to be determined alone by the political power of the government; and of this determination, the courts must take judicial knowledge.

2. SAME. Power of a military commander. Discretionary power. Responsible to his superior officer for official conduct. A state of war in Tennessee having been recognized by the President and Congress, in 1861, the United States military in occupation of a post in Tennessee, were properly holding it; and an officer in the United States service, in command of the post, had the right to exercise all discretionary power of a commander, coming within the scope of his military duty. For the proper exercise of this discretion, he was responsible alone to his superiors in command.

3. SAME. Same. When a military commander is not responsible before the courts of the country. When his acts are the acts of the government. The commander of a detached post, has for the time, the same powers and discretion as the commander of a department; and if, in the discharge of what he regards as his duty as commander, he sees proper to take the arms of a citizen, upon the ground that it was government

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