be lawfully there he must have been engaged in the performance of some duty to defendant requiring him to be thus walking on said track." This instruction was refused. It should, I think, have been given. It was for the jury to say whether the deceased was lawfully on the track in the performance of some duty. If this be not so, it is strongly favorable to the plaintiff. But the opinion holds, as a matter of law, the deceased was lawfully on the track in the performance of some duty. This, in my judgment, is radically wrong. There are other views stated in the opinion in which I do not concur, but I do not care to extend this dissent, and therefore do not enter upon their discussion.

See note p. 124.

LOUISVILLE AND NASHVILLE RAILROAD COMPANY

v.

PETER AND SARAH MCKENNA.

(Advance Case, Tennessee Reports. April, 1881.)

The provision of the Code (Sec. 1166, Subsec. 5, and Sec. 1167) providing that "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," and that "every railroad company that fails to observe these precautions, or cause them to be observed by its agents or servants, shall be responsible for all damages to persons or property occasioned by or resulting from any accident or collision that may occur," apply only to the injury of persons or property while on the road-bed, and has no applica tion to the injury of a passenger caused by an obstruction on the road-bed. In the relation which a railroad company bears to a passenger, the common law furnishes ample provision for any negligence of the company, and the provisions of the Code, Secs. 1166, Subsec. 5, and 1167 have no application.

TURNEY, J.-At about 5.30 o'clock on the morning of the 12th of November, 1873, a car on plaintiff in error's road was thrown from the track on a trestle near Brownsville. Mrs. McKenna was a passenger, and very seriously injured by the accident. This suit was brought by husband and wife to recover damages for the injury.

It is now the well settled law of this state that "when a railroad company engages in the business of common carriers, they undertake that the road is in good condition for travelling and fit for use, that the engine and carriages are roadworthy, and properly constructed and furnished according to the present state of the art. And if an injury results from the imperfection of the road, the carriages or the engines, the company is liable unless the imperfection was of a character in no degree attributable to negligence."

That "the company is also bound for a due application, on the part of its servants, of the necessary attention, art, and skill; and if the injury to a passenger might have been avoided by the utmost degree of care and skill on the part of the agents and servants of the company, it is liable." That "it is the duty of the company to use the best headlight the state of the art affords, and this rule applies to every appointment of the locomotive." 3 King's Digest, 2 ed., pp. 1720-21. The rule last cited obtains to every appointment of the train and road. Under it, if accident results from defects in machinery, in the construction of track, bridges, trestles, etc., or if there be a failure to use every possible precaution, and employ every possible energy to prevent an accident, the company will be liable. Therefore, if air-brakes and hand-brakes may be used to advantage, or if one will assist the other in checking the speed of a train when necessary to be checked, both must be used, or the company will be responsible in damages for any injury resulting from an accident caused by the running of the train or its being thrown from the track.

When it is necessary to check or stop a train, every appliance should be used to that end, and employees in charge should afford to each other every assistance in their power by communicating notices and commands, by putting on brakes, by using sand-boxes, etc., to increase friction and impede progress. In short, nothing demanded by the artful improvements of the times must be neglected, else a liability will accrue.

In this case it is said the accident was the immediate result of an obstruction on the trestle, which obstruction was a "T" rail lying diagonally across the track, about midway of the trestle, with one end under the south rail, and the other resting on the top of the north rail, and braced on both sides by cross-ties.

It is conceded that the alarm whistle was not sounded.

The court charged the jury: "This being so, you will find for the plaintiff unless you are satisfied from the testimony that it was physically impossible, after applying the brakes, to have blown the alarm whistle before the object was struck." This charge, as we think, presents the only question to be considered by us. It is the only one for which exception is taken to the action of the circuit judge and the jury. With it out of the way we could not reverse the judgment as the case appears in the record. It is argued for the appellees that the charge is correct, because it pursues the statute contained in section 1166, subsection 85, and section 1167, of Code, viz.: "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."' Every railroad company that fails to observe these precautions, or cause them to be observed by its agents or servants, shall be responsible for all damages to persons

or property occasioned by or resulting from any accident or collision that may occur.

This statute is very broad and comprehensive, and if it is intended to be applied to passengers on the train, the judgment must be affirmed. The heading of the chapter under which we find the sections of the Code referred to, is, of certain regulations for the protection of life and property on railroads. Our first inquiry is, was the statute necessary to the safety or protection of property or persons being moved by or travelling on railroad trains? Has it given to such persons or property a remedy or remedies more extensive and effective than already existed by common law. If there were not any statutes upon the subject, and a person is injured or killed, or his property damaged or destroyed through the negligence of a railroad company, its agents or employees, for such wrong and injury there is at common law a complete and adequate remedy. The statute has given this remedy no strength. The rule has always been that common carriers are bound to the utmost care and diligence in the transportation of persons and property, and are responsible in damages for the consequences of the failure of its exercise. No statute has, nor could it have made, this obligation more imperative.

Our next inquiry is: Was the statute necessary to the protection of persons and property on the track of a railway in front of an approaching train?

The company has obtained its right of way by charter from the State, and is entitled to the exclusive use and occupation of its track and road-bed, and their obstruction by others is a trespass. Without legislation of the character we are considering, the company and its agents would not be bound to that watchfulness and care imposed by the act to prevent injury to persons or property trespassing upon the road, and thereby obstructing the exercise of the charter rights of the company, and would be held to a less strict rule of accountability in suits for damages. In case of passengers or property on trains, the common law implies an undertaking on the part of the carriers that its road is in the best order, its engines, trains and machinery perfect and roadworthy, that its operatives are capable, faithful, and will use every possible means to prevent an injury to persons or property it carries for hire. While as to persons or property on its track, it is only bound to ordinary care and diligence. Nor is it required to have its machinery, carriages and road in better than ordinary condition and repair. In our opinion the statute was passed to remedy these latter defects of the common law. Even under the statute, it has never been contended that anything more shall be done than is directly required by it. There is nothing in the statute involving an inquiry as to the condition of the road, machinery or other appointments: while at common law, these, together with the

specifications in the statute are open to investigation; when passengers or property on trains are injured, and it cannot be inferred that the legislature intended an abridgment of common law rights. We therefore conclude, that, as a sufficient remedy already existed, a remedy more comprehensive than the statutory one, the legislature merely intended to enlarge rights and remedies in the one case, and to leave them in the other in full play and without contraction.

It may be as necessary to the safety of passengers that the alarm shall be sounded as that any other act shall be done, but this can only be required when it will have a tendency to decrease the danger of an accident. Whether the omission to sound the alarm whistle was want of proper care and skill, and whether its sounding would, under all the circumstances, have been necessary to lessen the chances of mishap, are questions of fact for the jury, and the charge of the circuit judge should have been so qualified. The judgment is reversed, and the cause remanded. DEADERICK, C. J., dissented.

See note p. 124.

HALLIHAN

v.

THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant. (71 Missouri Reports 113. October Term 113.)

In an action against a railroad company to recover damages for the killing of plaintiff's husband, the evidence showed the circumstances of his death to have been as follows: Deceased was a repairer of cars, of some years experience, in the service of another company, and was familiar with defendant's freight yard, and knew that the work of switching and making up trains was constantly going on there. He also knew the customary mode of doing this work. Defendant had in its yard a repair track, and separate from it, a track known as a transfer track, which was specially set apart for cars whose contents were to be transferred to other roads. On the day of the accident defendant's car repairer was engaged in inspecting a car standing on this transfer track, when deceased happened to pass by. He called to deceased to look at some work that had been done upon the car. Deceased was in the act of complying with this request, and was probably standing or stooping on the track at one end of the car, when another car switched down the track from the opposite direction in the usual manner, struck the first and sent it forward several feet, running over him and inflicting the injuries of which he died. Defendant's car repairer. (who was the only eye witness,) testified that the accident happened almost the instant he spoke to deceased. The evidence tended strongly to show that there was a brakeman in charge of the colliding car, but that it would have been impossible for him, if he was on the look-out, to see deceased. Held, that plaintiff was not entitled to recover.

George W. Easley, for appellant.

Tichenor & Warner, for respondent.

SHERWOOD, C. J.-Action for damages for injuries resulting in the death of plaintiff's husband. Plaintiff had judgment for $5,000. The yards of defendant, where the accident occurred, are about ten acres in extent, and covered with a net-work of tracks, where the switching of cars and the making up of trains was going on almost continuously during the busy season. It seems to be the customary manner of switching cars in the yard of defendant for the engine to take the cars up toward the bridge then "kick" them off, when they are cut off by yardmen to run on the different tracks wherever wanted; and the cars cannot be coupled at all, without the cars switched have acquired a sufficient momentum to strike the cars to which they are to be coupled, with a considerable degree of force, enough to move the cars with which they come in contact, a distance of several feet. Harris, a car repairer of defend ant's cars, was, at the time of the accident, at the south end of a car recently repaired and engaged in inspecting it. That car stood on a track running near the freight depot, and close to the platform of the depot, which track was used by defendant for transferring freight from defendant's road to others. There cars would be placed which had to be unloaded into or loaded from the cars of other roads. This track was entirely distinct and apart from the repair track. South of, and below the car being inspected, on the same track, and distant nearly a car's length, was a string of fifteen or twenty cars, and to the north, or in the direction of the bridge, there stood one car, though not, it seems, on the same track. There was a switch 100 yards north of the car Harris was examining, the track there inclining to the south from the switch. About 175 feet from the freight depot stood a tool house some ten by twelve feet in size, six or seven feet from the track, where that, after running south from the switch, bore off to the west before reaching the tool house. There was evidence that this house would in all probability obstruct the view of cars coming down the track, but that a man standing on the freight depot platform, could see a car running down the track, if he looked.

While Harris was engaged in the work of inspection, and either under the south end of the car, or else standing on the track at the south end of the car, Hallihan, who was a car repairer of the Mo. R., Ft. S. & G. R. R. Co., had been so for several years, and was thoroughly conversant with the custom of defendant's yard in respect to its method of distributing cars by means of running switches, being accustomed to being about the yards every day, came along on the freight depot platform, and while there or else near Harris, the latter spoke to him to look how certain repairs had been done on the car being inspected. Hallihan, it seems, complied