
    Phillips et al. v. East Tenn., Va. & Ga. Railway Co.
    May 27, 1891.
    Nonsuit. Negligence. Railroads. Before Judge Milner. Gordon superior court. August term, 1890.
   Simmons, J.

The facts of this case will be found in the official report. Under these facts the court did right in granting a nonsuit in the case. It was gross negligence on the part of two females to attempt to walk upon a trestle one hundred and fifty yards long and from twelve to fifteen feet high, near the time when a train was due, it further appearing that the servants of the railroad company did all that was possible to-be done after they discovered the females on the trestle. Judgment affirmed.

The minor children of Mrs. Phillips, by their guardian, sued the railway company for the homicide of their mother by the running of its train. After the introduction of the evidence for the plaintiffs the court granted a nonsuit, which is assigned as error. The principal witness for the plaintiffs was Mrs. Craig, wliose testimony was, in brief, as follows: Mrs. Phillips was run over and killed by the train of defendant at the north end of a trestle on its road, at about ten o’clock in the morning. She and I had been at the water-tank at the south end of the trestle, and had started back home across the trestle. When we first heard the train we were not frightened, as we thought it would stop for wafer, such being the custom of this train. When we saw it pass the tank we were not walking very fast, but commenced running. As we were nearing the north end of the trestle Mrs. Phillips fell and I tried to assist her to rise, but before I could do so, was myself thrown from the track by the locomotive, and Mrs. Phillips was run over and killed, about one hundred yards north of the tank. The railroad is straight at the place where the killing occurred, and wre could have been seen about one half mile. The train was running very fast, and no whistle was blown or warning given, except that the bell was rung as the engine passed the tank. Mrs. Phillips would not have been hurt if the train had stopped at the tank. The people of the neighborhood were, and had been for a number of years, in the habit of using the trestle as a foot-way, with the knowledge of the railroad authorities and without objection. "We took the precaution to listen before we got on the track, but could not see or hear any train. When we became aware of the approach of the train, we ran as fast as we could and made every effort to get oft’the trestle. We did all we could to save ourselves. They saw her in time to stop the train before she was killed. We could have gone to the tank by another way. I lived near the railroad ; Mrs. Phillips lived in Chattanooga, but was at my house on a visit. I do not know how often trains passed on the road. Wo-did not consider ourselves in danger, as we had been on the trestle often before. Mrs. Phillips had the same chance I had to get off the trestle, if she had not fallen. I do not remember how far the engine ran after it struck Mrs. Phillips ; and do not know that I heard the train coming, from the fact of water running over the dam and the noise the tank engine was making. We were going in the. same direction as the train and had our backs to it; and I do not remember how far the train was from us when I first saw it. Do not think it was down grade. At the time of and before this accident there were no notices put up by defendant forbidding people to walk along its road. I had Mrs. Phillips by the hand; she did not- get loose from me until she fell at the end of the trestle, nor did she stoop down or stop until she fell. We were probably half way on the trestle when we first saw and heard the train coming; did not have any thought of a train coming on the road so soon; believed we had plenty of time to cross the trestle before the coming of the train; the reason we thought it would be safe for us to pass over the trestle was, we did not see or hear any train approaching. ¥e did not know what time the train was due at Sugar Valley, a station near by, and did not know that it was behind time. The trestle is a long one and is about fifteen feet high. The ground is not soft and marshy along the trestle ; there was some grass growing there. We did not have plenty of time to get oil the trestle after we first heard the train. I suppose the train did not at all times stop at that tank, but I had seen it stop there often. Do not think the train rolled far after striking Mrs. Phillips.

From the testimony of other witnesses the following, in substance, appeared: The people of the neighborhood, and the public generally, have been in the habit of using the road and trestle as a footway for a number of years, with the knowledge of and without objection by the defendant. The trestle is about three or four hundred feet long and about twelve or fifteen feet high. The ground under the east side of it is in grass, and on the west side there are rocks, timber, etc. The creek comes near the trestle at the north end and turns and runs nearly parallel with the track nearly all the way to the tank at the south end. There is a dam across the creek, and water is pumped into the tank, the water running over the dam and the pumping making, when the pump is in motion, a considerable noise. The road is straight south of the trestle for about half a mile, and a person on an engine could see a person on the trestle for that distance. It is a little up grade where Mrs. Phillips was killed. One witness testified that the pump runs constantly; that the water running over the dam made so much noise that when he went across the trestle he could not hear the roar of a train and never depended .on his hearing for trains, but kept a lookout; that he did not know whether he could have heard this train or not (it was a passenger-train, making less noise than a freight-train) ; that he could hear a whistle, but did not depend on the sound of the train at all; that at the north end the trestle is eight or ten feet high, and on the east side is tolerably smooth with grass ; that a person on the trestle could see an engine as soon as the engineer could see him; and that the ground is smooth under the north end, and a wagon road passes under the trestle at that end. There was testimony by a witness who saw the killing, that he was one hundred or one hundred and fifty yards “on the rise” above Mrs. Phillips, and saw the train when it first came in sight; he reckoned it was about-a quarter of a mile from where it first came in sight to where Mrs. Phillips was killed, but could not say how far; Mrs. Phillips was on the right hand side of the trestle going nortl^ when killed at the north end ; he saw her running before she was killed, but did not know how long she had been running before the train struck her, it h.it her so quick; the train was running pretty fast and came along until it got from forty-five to seventy-five feet of her, and then it went “who-ye-who-ye” and ran right upon her; he did not hear the whistle blow; he saw the two ladies break and run as hard as they could, and the train caught them; the trestle was four hundred and fifty feet long, he measured it; Mrs. Phillips was behind, and Mrs. Craig caught her to pull her up when she fell down, but could not do so for the train knocked her off; he saw the train before the ladies saw it, maybe a minute; he was looking at them, and one of them looked back, and just as quick as she. did she started to run and both ran as fast as they could ; he did . not think they, saw the train before they began to run, because they were walking slowly; thinks the train was about two hundred yards from them when they looked back and began to run, being then about the middle of the trestle; when they looked back the train was about the north end of a little trestle which is about sixty or one hundred yards south of the trestle on which the killing occurred ; it might be that the speed of the train was checked before he heard the noise mentioned above, but he did not know that it was; that noise was caused by the wheels turning backwards; he reckoned Mrs. Phillips would have got off if she had not fallen down; the front driving wheel stopped right on her ; he was higher up than the ladies and could have seen further; it is about a quarter of a mile from whore they could have seen it if they had been looking, but he does not know whether they could have seen the engine before the person on the engine could have seen them; if they had been looking, they probably could have seen the smoke-stack before the engineer could have seen them ; he never saw any slowing up of the train before the noise mentioned above; he did not know whether or not Mrs. Phillips could have got off if she had not fallen down; the ladies had run about one third of the way before she fell down, and when she fell Mrs. Craig pulled her up, and when she got up the train ran over her and knocked Mrs. Craig loose ; the engine was about forty feet from Mrs. Phillips when the wheels were running backwards; the fuss commenced just as she fell, and the engineer put his head out of the window; witness never heard the bell ring; the pumping engine was making a great deal of noise, but he does not know whether or not the noise of the pump and the running water would keep the ladies from hearing the train, though he thinks it would have prevented their hearing as soon as he did; he heard the engine, looked around and saw it; does not know that he heard it before he saw it; he heard it and looked right around, and it was in sight; the wind was blowing from the south, etc. Another witness who saw the train testified that it was running fast, perhaps thirty miles an hour, when it passed him, and he heard a noise when it got about the tank, which he supposes was the reversal of the engine ; it was a half mile from the curve of the road to the south end of the trestle; the train had air brakes on it and could have been stopped before it got to the ladies ; he did not notice any noise from the brakes being on when it passed him, and he was right at the tank; he did not know whether it cheeked up any before it got to the trestle; a person on the trestle and in proximity of the pump and water could not hear a train as soon as one away from it, and a passenger-train makes less noise than &• freight-train; he could probably have seen the train before he heard it; a person on the engine conld see one on the track as soon as he turned the curve, and if a person on the trestle were looking he could see the engine as soon; there was a public road crossing about a mile from the tank, and the whistle was blown there. There was also evidence that Mrs. Phillips was a widow, leaving surviving her the two children for whom the suit was brought; and that she supported them by her labor; and testimony as to her age, earnings, etc.

Dabney & Fouché, for plaintiffs.

Dorsey & Howell, S. P. Maddox and A. O. Bacon, for defendant  