In the case at bar, however, defendants | street or highway as such are within the legal make no claim to any license or franchise, notion of a nuisance." McQuillan on Municialthough such license is a statutory prerequi- pal Corporations, § 925. site to the pursuit of defendants' business. The validity of complainant's franchise, on the other hand, is not impeached. [5] We are referred to the case of Levisay v. Delp, 9 Baxt. (68 Tenn.) 415, as laying down a contrary rule. In that case a licensed ferryman, the owner of one bank of the river, sought an injunction against the unlicensed operation of a ferry in competition by the owner of the other bank of the river. Under Shannon's Code, §§ 1697, 1703, the owner of either bank of a river is entitled to keep a ferry, but "all ferry keepers are required to procure a license and execute a bond." The court refused an injunction, saying with reference to the defendant: "It would be an idle exercise of the injunctive power by the court to restrain him in this case, when, as owner of one bank of the river, he may apply to the county court and obtain a license or order establishing his ferry, thus legalizing it, at the next term of that court." Levisay v. Delp, supra, was no doubt correctly decided on the facts appearing in that case, inasmuch as the defendant there could have procured his license as a matter of right almost by the time the injunction sought would have become effective. The injunction would have accomplished little or nothing. The injunction cannot be refused in this case on such a ground. An injunction may accomplish much here. The city of Memphis may decline to authorize the operation on its streets of jitney cars at all. At any rate, an injunction restraining the operation of such cars until the statutory bond is executed will eliminate all irresponsible owners. In so far as Levisay v. Delp intimates that an injunction may not issue to protect a franchise, unless that franchise be exclusive of the right of the state to confer on others a like franchise, we are unwilling to adhere to it. We think these remarks of the learned judge delivering the opinion were obiter, and not fully considered, and they are in conflict with the great weight of authority, as we have heretofore shown. We therefore must confine the authority of the case of Levisay v. Delp, supra, to its own facts. [6] We are of opinion, moreover, that complainant is entitled to the injunction sought on another ground. As we have stated, the operation of jitneys on the streets of any incorporated city or town in Tennessee without municipal permission, when the owners have executed no bond, is absolutely unlawful. Such operation is in defiance of the statute of this state and amounts to a public nui sance. "Any unauthorized obstruction of a public highway is a nuisance." 37 Cyc. 247. "Any unauthorized obstruction which necessarily impedes or incommodes the lawful use of a highway is a public nuisance at common law." Elliott on Roads and Streets, § 644. "All unauthorized and illegal obstructions which prevent or interfere with the free use of a "An obstruction may be a nuisance, although it is not of a permanent character." Elliott on Roads and Streets, § 648 (giving many illustrations). Under the authorities quoted there can be no doubt but that the illegal operation of the swarm of jitneys described in the bill, run by irresponsible owners, racing with the street cars for patronage, and otherwise imperiling the safety of the public, in violation of law, constitutes a nuisance. The law is well settled that a public nuisance may be enjoined by a private individual, provided the latter shows special damage to himself resulting therefrom. Weakley v. Page, 102 Tenn. 179, 53 S. W. 551, 46 L. R. A. 552; Richi v. Chattanooga Brewing Co., 105 Tenn. 651, 58 S. W. 646; Weidner v. Friedman, 126 Tenn. 677, 151 S. W. 56, 42 L. R. A. (N. S.) 1041; 37 Cyc. 253; High on Injunctions, § 816 et seq. A frequent application of this rule is in favor of persons specially injured by nuisances on a public highway. In Richi v. Chattanooga Brewing Co., 105 Tenn. 651, 58 S. W. 646, it was held that an abutting owner was entitled to enjoin an unauthorized construction and operation by a private corporation for its own use of a private railroad along the street, which destroyed the ingress and egress of such owner to and from his premises. Such a right of injunction is conceded to abutting owners in almost every jurisdiction, when they show special damages by reason of the obstruction of the highway. High on Injunctions, § 816. See cases collected in a note to Sloss-Sheffield Steel Co. v. Johnson, 147 Ala. 384, 41 South. 907, 8 L. R. A. (N. S.) 226, 119 Am. St. Rep. 89, as reported in 11 Ann. Cas. 285. [7] It is not necessary that the relief should be sought by an abutting owner, for it has been said that the character of the injury is not determined by the location of the property. The mere fact that an individual's property is at some distance from the obstruction does not determine whether or not his damage is special. Eldert v. Long Island Elec. R. Co., 28 App. Div. 451, 51 N. Y. Supp. 186. A neighboring landowner has been held to be entitled to enjoin the accumulation of an unlawful quantity of nitroglycerin on defendant's premises, where the complainant's property was so located as that he might be specially damaged by an explosion. People's Gas Co. v. Tyner, 131 Ind. 277, 31 N. E. 59, 16 L. R. A. 443, 31 Am. St. Rep. 433. The owner of a licensed ferry has been granted an injunction against the obstruction of a public road leading to his ferry. The court said: "The obstruction of the public road leading to plaintiff's ferry was a public nuisance and an injury to him specially; and his right to injunction against the continuance of such a nui sance is unquestionable." Draper v. Mackay, 35 Ark. 497. An injunction has also been awarded against the obstruction of a road leading to a toll bridge, at the suit of the owner of the bridge. The court was of opinion that such an obstruction, which would divert travel from the road and cause a loss of tolls to plaintiff, went to the substance and value of plaintiff's estate as the owner of a franchise to operate the bridge. Keystone Bridge Co. v. Summers, 13 W. Va. 476. So, without multiplying authorities, we conclude that on the ground last stated, as well as the former, the complainant in this case is entitled to an injunction. There can be no question but that the operation of the jitneys in the manner described in the bill, in contempt and disregard of the law of Tennessee, constitutes a public nuisance on the streets of Memphis. There is not the slightest doubt but that the complainant suffers special damage by reason of such nuisance. Complainant's loss of revenue by reason of the illegal competition amounts, it is alleged, to several hundred dollars each day. This damage is distinct and peculiar to complainant, and is an injury, to borrow the phrase of the West Virginia court, in the very substance and value of its estate. The decree of the chancellor will be reversed. Within 30 days from this date an injunction will issue as prayed by the complainant. In the interest of the people of Memphis, who may be discommoded otherwise by the sudden removal of this means of transportation, we have thought it best to suspend the awarding of the injunction for a brief time, to permit the city of Memphis, should it so desire, to pass an enabling ordinance for the jitney owners, and to give to the latter an opportunity to comply with the terms of said ordinance and the statute of Tennessee. CINCINNATI, N. O. & T. P. RY. CO. (Supreme Court of Tennessee. Nov. 8, 1915.) 1. RAILROADS 401-ACTIONS FOR INJURY OR DEATH-CONFUSING INSTRUCTIONS. In an action for the death of a person struck by a railroad train while standing at a point on a sharp curve, it was the theory of the company sustained by proof that a south-bound train was so interposed between deceased and the engine which struck him that deceased and his companion could not be seen from the engine. Plaintiff requested a charge that, if deceased could have been seen on the track by one on the lookout ahead before the view was cut off by the south-bound train, the law required that he be seen, and, though the south-bound train subsequently cut off the view, it was the duty of those operating the train to reduce the speed and bring the train under such control as to make certain that it could be stopped after he could again be seen and before striking him. The court so charged, with the modification that, if deceased again appeared upon the track, it was the duty of those on the engine not to so control the train as to be certain that it could be stopped before striking deceased, but to sound the alarm, put down the brakes, and use every possible means to stop the train and prevent the accident. Held, that this instruction, with the modification, was at least confusing to the jury. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dec. Dig. 401.] 2. RAILROADS 367-INJURIES TO PERSONS ON TRACK-KEEPING "LOOKOUT AHEAD." Under Shannon's Code, § 1574, providing that every railroad company shall keep the engineer, fireman, or some other person upon the locomotive always upon the "lookout ahead," look across the intervening space to the further enginemen are not required, when on a curve, to end of the curve, thereby withdrawing the lookout from the track immediately ahead of the engine. Cent. Dig. 88 1257, 1258; Dec. Dig. 367.j 3. RAILROADS 372-INJURIES TO PERSONS ON TRACK-RATE OF SPEED ON CURVES. [Ed. Note.-For other cases, see Railroads, As a precaution against injury to persons walking on the track, but not seen or known so to be, there is no duty to slacken the ordinary speed of a train approaching a curve in the open country, though the curve be in whole or in part in a cut or hidden from view by a train going in the opposite direction on the concave side of the curve. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1267-1269, 1271-1274; Dec. Dig. mm 372.] Error to Criminal and Law Court, Scott County; Xen Hicks, Judge. Action by Eva Wright against the Cincinnati, New Orleans & Texas Pacific Railway Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendant brings error. Reversed and remanded. H. M. Carr, of Harriman, for plaintiff in error. J. A. Fowler, of Knoxville, and R. Hurt, of Huntsville, for defendant in error. WILLIAMS, J. In the capacity of widow, and seeking to recover under the statute for the benefit of herself and her minor children, Eva Wright brought this suit against the appellant railway company to recover damages for the alleged negligent killing of her husband. She recovered a judgment for $1,000, which was sustained by the Court of Civil Appeals. On August 31, 1913, deceased, Wright, along with one James Thompson, went from their home to a point on the Tennessee-Kentucky state line to lay in a supply of "Labor Day" whisky. On their return, with their whisky in a basket and a bag, they made use of the tracks of appellant railway The line of railcompany as a walkway. way is double-tracked in that section, and the two men were walking south on the west or south-bound track, when they heard a freight train approaching from the north. They left the west track and went upon the east or north-bound track, and, when the south-bound train was passing them, they turned and faced the passing train and wayed at the fireman on the engine of the south For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The railway company assigned this action of the trial judge as error in the Court of Civil Appeals, but that court failed to see error in the request as modified by the trial judge. bound train. While standing thus engaged | appeared upon the track, it was the duty of the on the north-bound track, a freight train agents, and servants of the defendant on the running north ran upon them, instantly kill-engine not to so control the train as to be certain that it could be stopped before striking ing Wright. Thompson, who was standing Wright, but to sound the alarm, put down the within a few feet of Wright, further from the brakes, and use every possible means to stop approaching engine, and within striking dis- the train and to prevent the accident." tance of the same, was struck and injured. He had so far recovered as to be the chief witness in behalf of the widow of Wright in the trial of this case in the court below. Thompson testified that when his attention was first attracted by the north-bound engine it was about to hit Wright, or was within 3 or 4 feet of him. It does not appear whether deceased Wright ever saw this engine; he having been instantly killed by it. It is the claim of appellee that the statutory alarm signal was not sounded from the north-bound engine. The record shows that these men were struck while standing at a point on a sharp curve of about 32 to 4 degrees curvature, and that in this curve was a cut about 12 feet deep. The lower end of this curve was a considerable distance from the place where these men stood looking at the train passing on the west track, which track is on the concave side of the curve. It was the theory of the railway company (sustained by proof) that the south-bound train was so interposed between the engine of the north-bound train and these men as that they could not be seen as an obstruc tion on the track ahead of the engine; that the intervening train on the inside of the curve interfered with the line of vision from the engine to the point where the deceased stood; and, further, that it was not the duty of the engineer or fireman to look to or directly in the direction of a point towards the upper end of the curve, if thereby attention was withdrawn from the track more im mediately in front of the engine; in other words, that it was no part of their duty to look across the intervening space, when their line of vision would be directed away from the points on the track more immediately ahead of the advancing engine. [1] The counsel for the plaintiff widow, in an effort to meet this contention, submitted a request for a charge to the jury as fol lows: "If the deceased, Eck Wright, could have been seen as an obstruction upon the north-bound track by one on the lookout ahead, on either the engineer's or fireman's side of the engine, before the view was cut off by the south-bound train, then the law required that he be seen by such person on the lookout, and, though the southbound train subsequently cut off the view of said Wright, yet it was the duty of those operating the north-bound train to reduce speed and bring the train under such control as to make certain that it could be stopped after said Wright could again be seen and before striking him." The trial judge responded to this request in the following language: "I instruct you that this is the law, with this modification, however, that if the deceased again The request, with the grafted modification, must at the least have been confusing to the jury. We ourselves think it subject to the construction that it gave the jury to understand that, while it was not the duty of the enginemen on the north-bound train to so control the train as to be certain that it could be stopped before striking Wright, yet that it was their duty to so control the train as that the statutory precautions could be observed if and when deceased, Wright, again appeared in the view of the enginemen as an obstruction upon the track as they looked immediately ahead. Otherwise it seems that the trial judge would have refused the request outright. [2] Giving the charge this construction, it could only be held to be correct if the proposition of law advanced by appellee's counsel is sound, to wit: should, as by way of legal requirement, have sel is sound, to wit: That the enginemen maintained such a lookout ahead as that they could have discovered Wright as an obof the curve, in order to preparation for the struction on their track at or near the head of the curve, in order to preparation for the observance of the precaution, even if, to do So, they would be called to direct the line of vision away from the track, and striking distance thereof, across the "bowstring" of the curve. May the statute, stringent as it is, be given any such construction? The language of the statute (Code, Shannon, § 1574) in respect to the duty imposed is "always upon the lookout ahead; and when any person, animal or other obstruction appears upon the road," the precautions shall be observed. The phrase "lookout ahead" in an early case was treated as equivalent to "ahead on the track" (East Tennessee, etc., R. Co. v. St. John, 5 Sneed [37 Tenn.] 525, 73 Am. Dec. 149), and to mean "the direction in which the engine is moving" (Patton v. Railway, 89 Tenn. 370, 15 S. W. 919, 12 L. R. A. 184). The burden of showing compliance with the prescribed precautions arises only when the object appears on the track or within striking distance. Cincinnati, etc., C. Co. v. Brock, 132 Tenn., 178 S. W. 1115. A defense interposed by a railway company, in a case involving an injury to one on a curve, that its operatives on the engine were looking out across the intervening space at an object on the further end of the curve, would not be yielded to by the court as an excuse for their failure to observe an ob struction on the track appearing ahead of on the operatives of the company to slow and near to engine. down the speed of the train to prevent posOnly one case has been called to our at- sible injury to some one who may be walktention that bears on the point, Central, etc., ing on the track obscured from vision by the Co. v. Vaughan, 93 Ala. 209, 9 South. 468, intervening train. Such a rule would seri30 Am. St. Rep. 50, where it was held that ously retard the business of transportation, the engineer on a moving train approaching and the only reason for it would be the anticia distant trestle on a curve in a cut is un-pation that some person was without license der no common-law duty (there being no stat- making use of the track not designed for ute governing the matter in Alabama) to his use. withdraw his attention from the track in front of him and look across the country to see whether any one was on the trestle as an obstruction, and it was further held that evidence as to the fact that he might have seen such person on the trestle before entering the curve at a distance of 400 yards was not relevant or admissible on the question of negligence in failing to keep a proper lookout. The facts of this case demonstrate that a double-tracked railway line is a far more perilous place for pedestrians than a singletrack line. These tracks are constructed at great expense in order to make transportation safer and speedier, but such increase of peril is an incident not avoidable by the railway company. Owing to the disposition we make of the case, we do not think it necessary to pass on The principle may be sharply exemplified another assignment of error to the effect by an assumed case, that of a railroad, such that the verdict is excessive; but we do as that of the plaintiff in error, running think it proper to say that on a retrial of through a mountainous section, making nec- the cause it should be borne in mind that the essary sharp curves through deep cuts or increase of peril above noted should be deemtunnels. It cannot be maintained that the ed to augment the negligence of deceased if enginemen are required to look to the fur- he stepped from one of such tracks to anothther end of such a curve, thereby withdraw-er without taking care for his own safety. ing the lookout or line of vision from the track more immediately ahead of the engine thus assumed to be in or approaching the cut or tunnel. The above charge of the trial judge imposed an undue burden on the railway company, and constitutes reversible error. [3] There is, furthermore, no duty to slacken the ordinary speed of a train approaching a curve in the open country, although the curve be in whole or in part in a cut, as a precaution against injury to persons walking on the track, but not seen or known so to be. Hoffard v. Illinois Cent. R. Co., 138 Iowa, 543, 110 N. W. 446, 16 L. R. A. (N. S.) 797, in which case the court said: "No court has ever gone so far as to hold that it is incumbent on a railroad company to slacken the ordinary speed of its trains upon the approach to every curve in the track, which involves also a cut, as a precaution against injury to persons walking or working on the track. The reasons why such should not be the rule are obvious. Present-day conditions demand the maximum of speed consistent with train safety, this not only as in the interest of the operating company, but as related to the interests of the general public. Under a rule as contended for, such would not be possible of attainment in this country, where cuts and curves are of great frequency." The same principle is applicable to the situation presented on a double-track railway where a train is approaching and passing the one on which is the lookout, and which, being on the track on the concave side of the curve, tends to obstruct the forward vision of the lookout from the engine on the track on the convex side of the There is no duty imposed by the law curve. Other questions are disposed of orally. Reversed, and the cause remanded for a new trial. CHILDRESS v. STATE. --- shall be put to answer any criminal charge, but Const. art. 1, § 14, declares that no person by presentment, indictment, or impeachment. Laws 1911, c. 58, establishing juvenile courts, declares that any child under 16 who violates any law shall be deemed a delinquent child, and may be committed to the state reformatory, and that in case the child is incorrigible and incapable of reformation he shall be remanded to the proper courts for the trial of criminal offenses. Held, that the statute is not in violation of the Constitution; the proceeding not being one penal in its nature, but merely for the protection of the delinquent child. [Ed. Note.-For other cases, see Infants, Cent. Dig. § 13; Dec. Dig. 12.] Appeal from Juvenile Court, Anderson County; J. H. Wallace, Judge. John Childress was committed to the reformatory as a delinquent child, and he appeals. Affirmed. J. B. Burnett, of Clinton, for appellant. W. H. Swiggart, Jr., Asst. Atty. Gen., for the State. GREEN, J. In this case John Childress, a minor under 16 years of age, was committed as a delinquent child to the state reformatory for a period of 12 months, after due proceedings under chapter 58, Public Acts of 1911. It appeared that he was guilty of the crime of larceny, and was properly found to be a delinquent child on a hearing before the "That no person shall be put to answer any criminal charge but by presentment, indictment or impeachment." The statute mentioned outlines certain proceedings to be had before the juvenile courts thereby established with reference to dependent, neglected, and delinquent children, and provides for the disposition, care, education, protection, etc., of such children. Any child under the age of 16 years who violates any law of the state is declared to be a delinquent child, and the juvenile courts are authorized to commit such a child to the state reformatory or otherwise dispose of the child as set forth in said act. if thereafter found by the court to be incorrigible and incapable of reformation, or dangerous to the community, is then to be remanded to the proper courts for the trial of criminal offenses. So the proceedings in a juvenile court are entirely distinct from proceedings in the courts ordained to try persons for crime. Statutes like chapter 58 of the Public Acts of 1911 have been enacted in many of the states, and have been uniformly upheld. This court, speaking of the commitment of children to the state reformatory under a previous statute, has said: ment is not in the nature of punishment. Such "Such statutes are not penal, and commitan institution is a house of refuge, a schoolnot a prison. The object is the upbuilding of the inmate by industrial training, by education and instilling principles of morality and religion, and, above all, by separating them from the corrupting influences of improper associates." State ex rel. v. Kilvington, 100 Tenn. 227, 45 S. W. 433, 41 L. R. A. 284. "The commitment of infants to industrial schools, reformatories, or houses of refuge by a judge or justice without a trial is not in violation of the constitutional provisions relating to trial by jury. Such institutions are not prisons, and the proceeding is not a criminal prosecution. The object of the commitment is not punishment, but reformation and education of the *" 24 Cyc. 147. Such proceedings before a juvenile court do not amount to a trial of the child for any criminal offense. If it be found that the child has violated a law of the state, then he may be adjudged a delinquent child within the meaning of the act. The court, how-infant. * ever, does not undertake to punish the child for the crime committed, but undertakes to remove him from bad influences and to make such disposition of the child as to eradicate evil propensities by education, wholesome training, and moral instruction. As pointed out by the court in Ex parte Januszewski (C. C.) 196 Fed. 123, the commission of a crime by a child may set the juvenile court in motion, but the court does not try the delinquent minor for the crime. The crime being evidence of delinquency, the court undertakes to remedy the delinquency. Our statute provides that a child who shall have committed a misdemeanor or felony and has been adjudged to be a delinquent child, To the effect that these statutes do not interfere with constitutional rights to trial by jury, or immunity from trial except upon presentment or indictment, or with other constitutional rights, see Rooks v. Tindall, 138 Ga. 863, 76 S. E. 378; Ex parte Januszewski (C. C.) 196 Fed. 123; Marlowe v. Commonwealth, 142 Ky. 106, 133 S. W. 1137; Mill v. Brown, 31 Utah, 473, 88 Pac. 609, 120 Am. St. Rep. 935; Lindsay v. Lindsay, 257 Ill. 328, 100 N. E. 892, 45 L. R. A. (N. S.) 908, Ann. Cas. 1914A, 1222. See, also, cases collected in notes to 45 L. R. A. (N. S.) 908, and 18 L. R. A. (N. S.) 886. The judgment of the juvenile court is affirmed. |