WHITTAKER v. LOUISVILLE & N. R. CO. (Supreme Court of Tennessee. Oct. 2, 1915.) 1. JUSTICES OF THE PEACE 80-PLEADING

-WARRANT-SUFFICIENCY.

In a suit against a railroad for personal injury on or near its tracks, begun before a ciently advise the defendant of the nature of justice of the peace, the warrant must suffithe suit.

2. RAILROADS 312

ING-SIGNALS.

place at each railroad crossing a sign marked, "Look out for the cars when you hear the whistle or bell," and providing that no engineer need blow the whistle or ring the bell unless so designated, an engineer is not required to sound the whistle or bell at a crossing not designated by such sign.

only the Legislature should occupy, since it ] We find no error in the judgment of the would enable him to either destroy or main- Court of Civil Appeals, and it must be aftain the policies of the state according to his firmed. own will and purpose. Moreover, it would be inconsistent to admit a mutual regulation by employer and employé of a matter which had been deemed of sufficient importance to require an act of the Legislature to express a specific state policy. Such acts being passed to define rights and duties for the better regulation of business, and hence indirectly for the better regulation of society, must be sustained. They are not amenable to the doctrine of assumption of [Ed. Note.-For other cases, see Justices of risk for the reasons we have stated, since a the Peace, Cent. Dig. §§ 251-257; Dec. Dig. 80.] contrary decision would result in the courts ACCIDENT AT CROSSloosing that which the Legislature has the Legislature has bound. Nor is the result changed by the fact Under Shannon's Code, § 1574, subsecs. 1, that the statute fixes a penalty for its viola-2, requiring the overseers of public roads to tion. The doctrine that the assumption of the risk does not apply is in harmony with the purpose of the penalty, and there is nothing in the act to indicate that the penalty was exclusive of the employe's right to maintain an action for damages. The views herein expressed are sustained by the great weight of authority in this country. The question has never before been discussed in this state, so far as we are aware, yet has under Shannon's Code, § 1574, subsec. 4, proA count, in an action for personal injury, received much discussion in other jurisdic-viding that every railroad shall keep the entions. The cases are very numerous and will be found in the cited cases themselves and the notes to the cases. Streeter v. Western Wheel Scraper Co., 254 Ill. 244, 98 N. E. 541, 41 L. R. A. (N. S.) 628, Ann. Cas. 1913C, 204, and note; Fitzwater v. Warren, 206 204, and note; Fitzwater v. Warren, 206 N. Y. 355, 99 N. E. 1042, 42 L. R. A. (N. S.) 1229, and note; Curtis-Cartside Co. v. Pribyl, 38 Okl. 511, 134 Pac. 71, 49 L. R. A. (N. S.) 471, and note; Poli v. Numa Block Coal Co. 149 Iowa, 104, 127 N. W. 1105, 33 L. R. A. (N. S.) 646, and note; Low v. Clear Creek Coal Co., 140 Ky. 754, 131 S. W. 1007, 33 L. R. A. (N. S.) 656, Ann. Cas. 1912B, 574; Narramore v. Railroad, 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68.

[3] We have several cases in this state which hold that a violation of the terms of a statute is negligence per se, and renders the person guilty of such conduct responsible for all injuries which may be suffered as a direct consequence thereof, among which are Queen v. Dayton Coal & Iron Co., 95 Tenn. 458, 32 S. W. 460, 30 L. R. A. 82, 49 Am. St. Rep. 935; Riden v. Grimm Bros., 97 Tenn. 220, 36 S. W. 1097, 35 L. R. A. 587; Railway v. Haynes, 112 Tenn. 712, 81 S. W. 374; Adams v. Inn Co., 117 Tenn. 470, 101 S. W. 428. But we have no case on the narrow

point covered by the preceding discussion and the authorities cited thereunder. However, in Adams v. Inn Co., the same principle was applied to the case of a boarder at a hotel which, at the time of its destruction by fire, had not been equipped with fire escapes as required by statute.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 998-1001, 1003-1005; Dec. Dig. 312.1 3. RAILROADS 320, 344 ACCIDENT AT CROSSING-PLEADING-OBSTRUCTION.

gineer or fireman always upon the lookout, and when any obstruction appears the whistle shall be sounded, the brakes put down, and all possible means taken to prevent an accident, is a count under the common law, unless it was further charged that the person or object on the track was struck by the train, and by the addition of such circumstance the count is brought within Shannon's Code, § 1575, providing that every railroad failing to observe specified precautions shall be responsible for all resulting 1576, providing that no railroad observing such damage to persons or property, and section precautions shall be responsible for injury to persons on its road, so that where the warrant did not charge that the train struck the plaintiff or her wagon, and it appeared that she jumped from the wagon, the action was under the common law, and there was no absolute liability for failure to take the specified precautions.

Cent. Dig. $8 1014-1016, 1019, 1107-1112; Dec. [Ed. Note.-For other cases, see Railroads, Dig. 320, 344.]

4. RAILROADS 351 - ACCIDENT AT CROSS

ING-INSTRUCTION.

In an action for personal injury at a subsec. 4, an instruction that it was the duty crossing brought under Shannon's Code, § 1574, of the railroad on seeing plaintiff's wagon on or near the track, and in view of the train's speed of 50 miles an hour, to sound the whistle and endeavor to prevent an accident, was proper; but an instruction that plaintiff was entitled to recover because the engineer made no effort to stop even though no collision occurred was improper.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1193-1211, 1213-1215; Dec. Dig. 351.] 5. RAILROADS 350 -ACCIDENT AT CROSSQUESTION FOR JURY-CONTRIBUTORY

ING

NEGLIGENCE.

ing brought under Shannon's Code, § 1574, In an action for personal injury at a crosssubsec. 4, held on the evidence that it was for the jury to say whether plaintiff was negligent

in jumping from the wagon instead of trusting | on the side of the track, whereby she was her safety to the speed of the horses as the injured. driver of the team did.

[Ed. Note. For other cases. see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. 350.] Certiorari to Court of Civil Appeals. Action by Mrs. W. M. Whittaker against the Louisville & Nashville Railroad Company. From a judgment of the Court of Civil Appeals, reversing a judgment of the circuit court for Knox county for plaintiff and remanding for a new trial, the plaintiff brings certiorari. Affirmed.

J. Alvin Johnson and Pickle, Turner, Kennerly & Cate, all of Knoxville, for plaintiff. Johnson & Cox and Jas. B. Wright, all of Knoxville, for defendant.

NEIL, C. J. This action was originally brought before a justice of the peace to recover judgment for an injury alleged to have been inflicted upon the plaintiff by the defendant. There was a judgment in favor of the plaintiff before the justice, and from this an appeal was prosecuted to the circuit court of the county. In that court there was likewise a judgment against the railroad company. An appeal was then prosecuted to the Court of Civil Appeals, and the judgment of the circuit court was there reversed and the cause remanded for new trial. We are of the opinion that the conclusion reached by the Court of Civil Appeals was correct, and that the judgment of that court should be affirmed.

[2] There is a paragraph in the warrant averring that the defendant failed to sound

the whistle or bell of the locomotive at the distance of one-fourth of a mile from the crossing, and at short intervals till the train had passed the crossing, pursuant to subsection 2 of section 1574 of Shannon's Code, and that this was one cause of the injury. This portion of the warrant, however, is no longer insisted upon because under subsection 1 of the same section, as held in Graves v. Railroad, 126 Tenn. 149, 148 S. W. 239, there was no duty incumbent on the railroad to comply with the provision referred to, because it did not appear in the evidence that the county warning ("Look out for the cars when you hear the whistle or bell") had been erected at the crossing pursuant to said section 1. The section provided that no engine driver should be compelled to blow the whistle or ring the bell at any crossing unless so designated.

[3] There was another paragraph based on subsection 4 of section 1574. This subsection reads as follows:

"Every railroad company shall keep the engineer, fireman, or some other person, upon the locomotive, always upon the lookout 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."

It was held in Railroad v. Crews, 118 Tenn. 52, 62-64, 99 S. W. 368, that a count un

We shall now endeavor to make clear our der subsection 2 was a count under the statreasons for this conclusion.

ute, but that a count under subsection 4 [1] Although the suit was begun before a was a count under the common law, unless it justice of the peace, and, according to the were further charged that the injury was practice before such officers, there was no caused by contact with the moving train, or, declaration but only a warrant, yet this war-in other words, unless the object on the track rant was practically as full as the declara- or road should be struck by the train. The tion in a circuit court, and necessarily so, inasmuch as under recent decisions of this court it has been held that the warrant must sufficiently advise the defendant of the nature of the suit brought against him in the class of cases before us.

The substance of the warrant is that Mrs. Whittaker, on a certain day stated, was in a wagon driven by one Luttrell; that before the horses entered upon the track of the defendant company the team was slowed down, and both plaintiff and Luttrell looked and listened, and neither saw nor heard a train; that when the horses had gotten upon the track she saw one of defendant in error's trains coming around a curve about 500 feet distant and running very rapidly; that she urged the driver to speed up his team, but the train was coming so fast she feared they could not clear the track in time, and therefore she ran to the front of the wagon and jumped out on the ground, falling in the midst of some slag and other rough material

reason given was that the provisions of subsection 2 were peculiar to the statute, while those of subsection 4 simply expressed common-law duties. That is to say, that in so far as concerned the provisions of subsection 4 the statute and the common law are concurrent, and that in order to bring a count under the statute the additional circumstance above referred to should be added. By the addition of such further matter the charge is brought within the scope of sections 1575 and 1576 of Shannon's Code, which read as follows:

"1575. 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.

1576. No railroad company that observes, or causes to be observed, these precautions shall be responsible for any damage done to person or property on its road. The proof that it has observed said precautions shall be upon the company."

"The statute (Sh. Code, § 1575) provides that any railroad company that fails to comply with the precautions laid down in the preceding sections shall be responsible for all damages to person or property 'occasioned by or resulting from any accident or collision that may occur." "This statutory rule has been administered er, under all the circumstances, she acted by this court with great strictness, nor do we with reasonable prudence and caution; that in any wise desire to depart from the policy is to say, whether she was reasonably justiof the law as evidenced in our previous deci- fied in springing from the wagon instead of sions. But it has not been held in any case,

that there could be a recovery where there was trusting her safety to the speed of the horses, no collision on the track, or within the sweep as the driver did. The trial judge should of the moving train. Here, there was no colli- not, in effect, have told the jury that, even sion. The defendant in error had cleared the

track and, after doing so, threw his hand back though no collision resulted, she was entitled under the wheels of the passing train. This to a verdict merely from the fact that the was not a collision in the sense of the statute. engine driver made no effort to stop the It is true that the railway company was grossly train. negligent, and so was the defendant in error; but no matter how negligent the railway company is, in this class of cases, its liability is

tiff in this court showing that it is not well usual tillage about 15 years before the suit taken.

A copy of this opinion will go down with for grazing purposes. The condition grew the procedendo.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. three years next preceding the institution of this suit; that is, such rental value as they would have realized from it had the original wrong never been committed.”

the doctrine of recurrent injuries and that the statute of limitations began to run, not from the construction of the boom, but from the date when the damages accrued, and, further, that sediment so deposited within a period earlier than the period saved for action by the statute (five years for damages to realty in that state) was to be deemed an element operating to effect damages accruing within the period limited by statute. It was said by the court:

"It is not material when the sand was deposited creating that condition which caused the damage. That condition or state of the stream coming from the construction of the boom, and that condition still continuing entitling Pickens to recovery, how is it material when the sand was deposited so it continued to work damage within the five years for which this suit was brought? *** Pickens had right to operate his mill in its original condition not only during the five years involved in the first suit, but also during the five years involved in the second suit, * * and it is utterly immaterial when that sand was deposited, so it continued to operate in diminishing the work ing capacity of the mill."

We need not stop to inquire how the working capacity of a mill property, if the deposit were made on the plaintiff's property, can be distinguished in that attitude from the capacity of farm lands to produce crops, but the above case may be fairly said, in its argument at least, to sustain the judgment here under review. But is that case, if sound on its immediate facts, sound in its argumentation in the respect indicated or as applied to a case like this?

back to a time when the stream was not polluted, and the slate and slack had not been detheir notice, not the injury done in six years, posited on the plaintiff's land. It brought to but the changes made from the beginning of operations on Brush creek, which was nearly or quite a quarter of a century before the trial. While the learned judge told the jury that the plaintiff could not recover for an injury sus tained more than six years before his action was begun, he permitted testimony to be given of the plaintiff's flat land to their attention, which brought the entire change in the situation and which contrasted its value if in its original condition with its value in its present condition."

This was held to be error.

The ruling on the point in any case that is to the contrary of the doctrine thus announced by the Pennsylvania court, we think, disregards a fundamental principle in the law of torts, viz.:

"A single tort can be the foundation for but one claim for damages. *** All damages which can by any possibility result from a single tort form an indivisible cause of action. Every cause of action in tort consists of two parts, to wit, the unlawful act, and all dam ages that can arise from it. For damages alone no action can be permitted. Hence, if a recovery has once been had for the unlawful act, no subsequent suit can be maintained. There must be a fresh act, as well as fresh damages." 1 Freeman on Judgments, § 2111; Railroad v. Brigman, 95 Tenn. 624, 32 S. W. 762; Love v. Railroad, 108 Tenn. 122, 65 S. W. 475, 55 L. R. A. 471; Railroad v. Matthews, 115 Tenn. 172, 91 S. W. 194.

injuriously the lands of the plaintiff, as fresh acts giving rise to fresh damages.

Each trespass or fresh tortious act thus producing injury constitutes a cause of action, and this is susceptible of being barred by the statute of limitations. When, for example, an overflow occurs on a date prior to the period of limitation, that wrongful act and equally its result, the damage done, are barred when the applicable statute is pleaded.

For these reasons, in cases such as the one under review, the cause of action. is not referable to the original obstruction of the In Lentz v. Carnegie Bros. & Co., 145 Pa. ditch, but to the subsequent several recur612, 23 Atl. 219, 27 Am. St. Rep. 717, the plain-rent tortious acts of overflow which affected tiff was the owner of a farm a part of which was along a creek into which defendants habitually dumped slate and slack depending upon the current and floods to carry it past plaintiff's land and away. Beginning about twenty-five years before the commencement of the suit, the dumped materials by degrees were deposited on the land to its material injury. These deposits continued to be made within the statutory limitation period-six years in that state. The court held that the questions thus presented for jury determination were: What was the condition of the land of plaintiff six years before the writ was issued? Was it covered by the deposit complained of? Whether the situation had been made worse during the six years, and to what extent? Giving, as a reason why the measure of damages adopted by the court below was inapplicable, that it allowed a consideration by the jury of the land's value in its original condition, that is, before the deposits began to form, the court said:

It is illogical, therefore, to treat such items of injury or damage as projected forward into the period of limitation as being themselves factors contributing to further injuries, as acts of wrong, since they are but the result of precedent acts, confessedly barred. When a cause of action is barred, it is barred in its entirety, not as to only one of the two elements of which it thus consists. The statute puts at repose all that preceded its period that was actionable.

The Court of Civil Appeals was in error on this point, and its judgment will be modified, and the cause be heard on the remand in accordance with the ruling embodied in

"The defendants had pleaded the statute of limitations, and the inquiry was thereby limited to six years. The comparison which the tes timony placed before the jury carried them this opinion.