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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.

“An obstruction may be a nuisance, although site to the pursuit of defendants' business. it is not of a permanent character.” Elliott on The validity of complainant's franchise, on Roads and Streets, $ 648 (giving many illustrathe other hand, is not impeached.

tions). [5] We are referred to the case of Levisay Under the authorities quoted there can be v. Delp, 9 Baxt. (68 Tenn.) 415, as laying no doubt but that the illegal operation of down a contrary rule. In that case a li- the swarm of jitneys described in the bill, censed ferryman, the owner of one bank of run by irresponsible owners, racing with the the river, sought an injunction against the street cars for patronage, and otherwise imunlicensed operation of a ferry in competi- periling the safety of the public, in violation tion by the owner of the other bank of the of law, constitutes a nuisance. The law is river. Under Shannon's Code, $$ 1697, 1703, well settled that a public nuisance may be the owner of either bank of a river is en- enjoined by a private individual, provided titled to keep a ferry, but “all ferry keepers the latter shows special damage to himself are required to procure a license and execute resulting therefrom. Weakley v. Page, 102 a bond."

The court refused an injunction, Tenn. 179, 53 S. W. 551, 46 L. R. A. 552; saying with reference to the defendant:

Richi v. Chattanooga Brewing Co., 105 Tenn. "It would be an idle exercise of the injunctive 651, 58 S. W. 616; Weidner v. Friedman, 126 power by the court to restrain him in this case, Tenn. 677, 151 S. W. 56, 42 L. R. A. (N. S.) when, as owner of one bank of the river, he may apply to the county court and obtain a license 1011; 37 Cyc. 253; High on Injunctions, or order establishing his ferry, thus legalizing it, § 816 et seq. at the next term of that court."

A frequent application of this rule is in Levisay v. Delp, supra, was no doubt cor- favor of persons specially injured by nuirectly decided on the facts appearing in that sances on a public highway. case, inasmuch as the defendant there could In Richi v. Chattanooga Brewing Co., 105 have procured his license as a matter of Tenn. 651, 58 S. W. 646, it was held that an right almost by the time the injunction abutting owner was entitled to enjoin an unsought would have become effective. The authorized construction and operation by injunction would have accomplished little or private corporation for its own use of a prinothing.

vate railroad along the street, which destroyThe injunction cannot be refused in this ed the ingress and egress of such owner to case on such a ground. An injunction may and from his premises. accomplish much here. The city of Memphis Such a right of injunction is conceded tờ may decline to authorize the operation on abutting owners in almost every jurisdicits streets of jitney cars at all. At any rate, tion, when they show special damages by an injunction restraining the operation of reason of the obstruction of the highway. such cars until the statutory bond is execut- High on Injunctions, § 816. See cases coled will eliminate all irresponsible owners. lected in a note to Sloss-Sheffield Steel Co.

In so far as Levisay v. Delp intimates that v. Johnson, 147 Ala. 384, 41 South. 907, 8 an injunction may not issue to protect a L. R. A. (N. S.) 226, 119 Am. St. Rep. 89, as franchise, unless that franchise be exclusive reported in 11 Ann. Cas. 285. of the right of the state to confer on others [7] It is not necessary that the relief

[ a like franchise, we are unwilling to adhere should be sought by an abutting owner, for to it. We think these remarks of the learned it has been said that the character of the injudge delivering the opinion were obiter, jury is not determined by the location of and not fully considered, and they are in the property. The mere fact that an indiconflict with the great weight of authority, vidual's property is at some distance from as we have heretofore shown. We therefore the obstruction does not determine whether must confine the authority of the case of or not his damage is special. Eldert v. Long Levisay v. Delp, supra, to its own facts. Island Elec. R. Co., 28 App. Div. 451, 51

[6] We are of opinion, moreover, that com- N. Y. Supp. 186. plainant is entitled to the injunction sought A neighboring landowner has been held to on another ground. As we have stated, the be entitled to enjoin the accumulation of an operation of jitneys on the streets of any in- unlawful quantity of nitroglycerin on defendcorporated city or town in Tennessee without ant's premises, where the complainant's propmunicipal permission, when the owners have erty was so located as that he might be executed no bond, is absolutely unlawful. specially damaged by an explosion. PeoSuch operation is in defiance of the statute ple's Gas Co. v. Tyner, 131 Ind. 277, 31 N. of this state and amounts to a public nui- E. 59, 16 L. R. A. 443, 31 Am. St. Rep. 433. sance.

The owner of a licensed ferry has been “Any unauthorized obstruction of a public granted an injunction against the obstruchighway is a nuisance.” 37 Cyc. 247. “Any unauthorized obstruction which neces

tion of a public road leading to his ferry. sarily impedes or incommodes the lawful use of The court said: a highway is a public nuisance at common law." "The obstruction of the public road leading to Elliott on Roads and Streets, $ 644.

plaintiff's ferry was a public nuisance and an "All unauthorized and illegal obstructions injury to him specially; and his right to inwhich prevent or interfere with the free use of a junction against the continuance of such a nuisance is unquestionable." Draper v. Mackay, be stopped before striking deceased, but to 35 Ark. 497.

sound the alarm, put down the brakes, and use An injunction has also been awarded every possible means to stop the train and pre

vent the accident. Held, that this instruction, against the obstruction of a road leading to with the modification, was at least confusing to a toll bridge, at the suit of the owner of the jury. the bridge. The court was of opinion that [Ed. Note. For other cases, see Railroads, such an obstruction, which would divert Cent. Dig. $$ 1382-1390; Dec. Dig. 401.] travel from the road and cause a loss of 2. RAILROADS O367-INJURIES TO PERSONS

ON TRACK-KEEPING "LOOKOUT AHEAD." tolls to plaintiff, went to the substance and

Under Shannon's Code, § 1574, providing value of plaintiff's estate as the owner of a that every railroad company shall keep the enfranchise to operate the bridge. Keystone gineer, fireman, or some other person upon the Bridge Co. v. Summers, 13 W. Va. 476.

locomotive always upon the lookout ahead," So, without multiplying authorities, we look across the intervening space to the further

enginemen are not required, when on a curve, to conclude that on the ground last stated, as end of the curve, thereby withdrawing the lookwell as the former, the complainant in this out from the track immediately ahead of the case is entitled to an injunction. There can

There can engine. be no question but that the operation of the Cent. Dig. ss 1257, 1258; Dec. Dig. @w 367.j

[Ed. Note. For other cases, see Railroads, jitneys in the manner described in the bill, in contempt and disregard of the law of 3. RAILROADS_C372–INJURIES TO PERSONS

ON TRACK-RATE OF SPEED ON CURVES. Tennessee, constitutes a public nuisance on

As a precaution against injury to persons the streets of Memphis. There is not the walking on the track, but not seen or known so slightest doubt but that the complainant suf- to be, there is no duty to slacken the ordinary fers special damage by reason of such nui- speed of a train approaching a curve in the

open country, though the curve be in whole or sance. Complainant's loss of revenue by in part in a cut or hidden from view by a train reason of the illegal competition amounts, going in the opposite direction on the concave it is alleged, to several hundred dollars each side of the curve. day. This damage is distinct and peculiar cent. Dig. SS 1267-1269, 1271-1274; Dec. Dig.

[Ed. Note. For other cases, see Railroads, to complainant, and is an injury, to borrow

Om 372.] the phrase of the West Virginia court, in the

Error to Criminal and Law Court, Scott very substance and value of its estate.

The decree of the chancellor will be re- County; Xen Hicks, Judge. versed. Within 30 days from this date an

Action by Eva Wright against the Cininjunction will issue as prayed by the com- cinnati, New Orleans & Texas Pacific Railplainant. In the interest of the people of way Company. A judgment for plaintiff was Memphis, who may be discommoded other affirmed by the Court of Civil Appeals, and wise by the sudden removal of this means of defendant brings error. Reversed and retransportation, we have thought it best to manded. suspend the awarding of the injunction for a H. M. Carr, of Harriman, for plaintiff in brief time, to permit the city of Memphis, error. J. A. Fowler, of Knoxville, and R. should it so desire, to pass an enabling ordi- Hurt, of Huntsville, for defendant in error. nance for the jitney owners, and to give to the latter an opportunity to comply with the WILLIAMS, J. In the capacity of widterms of said ordinance and the statute of ow, and seeking to recover under the statute Tennessee.

for the benefit of herself and her minor children, Eva Wright brought this suit against

the appellant railway company to recover CINCINNATI, N. 0. & T. P. RY. CO.

damages for the alleged negligent killing v. WRIGHT.

of her husband. She recovered a judgment (Supreme Court of Tennessee. Nov. 8, 1915.) for $1,000, which was sustained by the Court 1. RAILROADS 401-ACTIONS FOR INJURY of Civil Appeals. OR DEATH-CONFUSING INSTRUCTIONS. In an action for the death of a person

On August 31, 1913, deceased, Wright, struck by a railroad train while standing at a along with one James Thompson, went from point on a sharp curve, it was the theory of the their home to a point on the Tennessee-Kencompany sustained by proof that a south-bound tucky state line to lay in a supply of “Latrain was so interposed between deceased and the engine which struck him that deceased and bor Day” whisky. On their return, with his companion could not be seen from the en- their whisky in a basket and a bag, they gine. Plaintiff requested a charge that, if de- made use of the tracks of appellant railway ceased could have been seen on the track by one company as a walkway. The line of railon the lookout ahead before the view was cut off by the south-bound train, the law required way is double-tracked in that section, and that he be seen, and, though the south-bound the two men were walking south on the west train subsequently cut off the view, it was the or south-bound track, when they heard a duty of those operating the train to reduce the speed and bring the train under such control as freight train approaching from the north. to make certain that it could be stopped after They left the west track and went upon the he could again be seen and before striking him. east or north-bound track, and, when the The court so charged, with the modification that, south-bound train was passing them, they if deceased again appeared upon the track, it was the duty of those on the engine not to so turned and faced the passing train and wav, control the train as to be certain that it coulded at the fireman on the engine of the south

Omw For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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 cer

tain 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.

The railway company assigned this action He had so far recovered as to be the chief of the trial judge as error in the Court of witness in behalf of the widow of Wright Civil Appeals, but that court failed to see in the trial of this case in the court below. error in the request as modified by the trial

Thompson testified that when his atten- judge. tion was first attracted by the north-bound

The request, with the grafted modification, gin it was about to hit Wright, or was must at the least have been confusing to within 3 or 4 feet of him. It does not ap- the jury. We ourselves think it subject to pear whether deceased Wright ever saw this the construction that it gave the jury to engine; he having been instantly killed by it. understand that, while it was not the duty It is the claim of appellee that the statutory of the enginemen on the north-bound train to alarm signal was not sounded from the so control the train as to be certain that it north-bound engine.

could be stopped before striking Wright, yet The record shows that these men were that it was their duty to so control the train struck while standing at a point on a sharp as that the statutory precautions could be curve of about 342 to 4 degrees curvature, observed if and when deceased, Wright, and that in this curve was a cut about 12 again appeared in the view of the enginemen feet deep.

as an obstruction upon the track as they The lower end of this curve was a consid

looked immediately ahead. Otherwise it erable distance from the place where these seems that the trial judge would have refusmen stood looking at the train passing on ed the request outright. the west track, which track is on the con

[2] Giving the charge this construction, it cave side of the curve.

could only be held to be correct if the propIt was the theory of the railway company osition of law advanced by appellee's coun(sustained by proof) that the south-bound train was so interposed between the engine should, as by way of legal requirement, have

sel is sound, to wit: That the enginemen of the north-bound train and these men as

maintained such a lookout ahead as that that they could not be seen as an obstruc- they could have discovered Wright as an obtion on the track ahead of the engine; that struction on their track at or near the head the intervening train on the inside of the struction on their track at or near the head curve interfered with the line of vision from of the curve, in order to preparation for the the engine to the point where the deceased observance of the precaution, even if, to do stood; and, further, that it was not the duty so, they would be called to direct the line of of the engineer or fireman to look to or di. vision away from the track, and striking disrectly in the direction of a point towards the tance thereof, across the "bowstring” of the

curve. upper end of the curve, if thereby attention

May the statute, stringent as it is, be givwas withdrawn from the track more immediately in front of the engine; in other en any such construction? The language of words, that it was no part of their duty to the statute (Code, Shannon, 1574) in relook across the intervening space, when their spect to the duty imposed is “always upon line of vision would be directed away from the lookout ahead; and when any person, the points on the track more immediately animal or other obstruction appears upon ahead of the advancing engine.

the road," the precautions shall be observed. [1] The counsel for the plaintiff widow, in The phrase "lookout ahead” in an early case an effort to meet this contention, submitted was treated as equivalent to "ahead on the á request for a charge to the jury as fol- track” (East Tennessee, etc., R. Co. v. St. lows:

John, 5 Sneed [37 Tenn.] 525, 73 Am. Dec. "If the deceased, Eck Wright, could have been 149), and to mean "the direction in which seen as an obstruction upon the north-bound the engine is moving" (Patton v. Railway, 89 track by one on the lookout ahead, on either the Tenn. 370, 15 S. W. 919, 12 L. R. A. 184). engineer's or fireman's side of the engine, before The burden of showing compliance with the the view was cut off by the south-bound train, then the law required that he be seen by such prescribed precautions arises only when the person on the lookout, and, though the south object appears on the track or within strikbound train subsequently cut off the view of said ing distance. Cincinnati, etc., C. Co. v. Wright, yet it was the duty of those operating Brock, 132 Tenn. — 178 S. W. 1115. the north-bound train to reduce speed and bring the train under such control as to make certain

A defense interposed by a railway compathat it could be stopped after said Wright could ny, in a case involving an injury to one on a again be seen and before striking him."

curve, that its operatives on the engine were The trial judge responded to this request looking out across the intervening space at in the following language:

an object on the further end of the curye, “I instruct you that this is the law, with this would not be yielded to by the court as an 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 The facts of this case demonstrate that front of him and look across the country a double-tracked railway line is a far more to see whether any one was on the trestle perilous place for pedestrians than a singleas an obstruction, and it was further held track line. These tracks are constructed at that evidence as to the fact that he might great expense in order to make transportahave seen such person on the trestle before tion safer and speedier, but such increase of entering the curve at a distance of 400 peril is an incident not avoidable by the railyards was not relevant or admissible on the way company. question of negligence in failing to keep a Owing to the disposition we make of the proper lookout.

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 Other questions are disposed of ly. track more immediately ahead of the engine Reversed, and the cause remanded for a thus assumed to be in or approaching the new trial. cut or tunnel.

The above charge of the trial judge imposed an undue burden on the railway com

CHILDRESS v. STATE. pany, and constitutes reversible error. (Supreme Court of Tennessee. Nov. 6, 1915.)

[3] There is, furthermore, no duty to INFANTS 12 - DELINQUENT CHILDREN — slacken the ordinary speed of a train ap

STATUTES_VALIDITY. proaching a curve in the open country, al- shall be put to answer any criminal charge, but

Const. art. 1, § 14, declares that no person though the curve be in whole or in part in a by presentment, indictment, or impeachment. cut, as a precaution against injury to per- Laws 1911, c. 58, establishing juvenile courts, sons walking on the track, but not seen or declares that any child under 16 who violates known so to be. Hoffard v. Illinois Cent. any law shall be deemed a delinquent child, and

may be committed to the state reformatory, and R. Co., 138 Iowa, 543, 110 N. W. 446, 16 L. that in case the child is incorrigible and incapaR. A. (N. S.) 797, in which case the court ble of reformation he shall be remanded to the said:

proper courts for the trial of criminal offenses.

Heid, that the statute is not in violation of the "No court has ever gone so far as to hold Constitution; the proceeding not being one pethat it is incumbent on a railroad company to nal in its nature, but merely for the protection slacken the ordinary speed of its trains upon the of the delinquent child. approach to every curve in the track, which in

[Ed. Note.-For_other cases, see Infants, volves also a cut, as a precaution against in- Cent. Dig. § 13; Dec. Dig. Om 12.] jury to persons walking or working on the track. The reasons why such should not be the rule

Appeal from Juvenile Court, Anderson are obvious. Present-day conditions demand the maximum of speed consistent with train County; J. H. Wallace, Judge. safety, this not only as in the interest of the John Childress was committed to the reoperating company, but as related to the in- formatory as a delinquent child, and he apterests of the general public. Under a rule as

peals. Affirmed. contended for, such would not be possible of attainment in this country, where cuts and J. B. Burnett, of Clinton, for appellant. curves are of great frequency.”

W. H. Swiggart, Jr., Asst. Atty. Gen., for the The same principle is applicable to the State. situation presented on a double-track railway where a train is approaching and pass- GREEN, J. In this case John Childress, a ing the one on which is the lookout, and minor under 16 years of age, was committed which, being on the track on the concave as a delinquent child to the state reformaside of the curve, tends to obstruct the tory for a period of 12 months, after due proforward vision of the lookout from the en-ceedings under chapter 58, Public Acts of gine on the track on the convex side of the 1911. It appeared that he was guilty of the curve. There is no duty imposed by the law crime of larceny, and was properly found to

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be a delinquent child on a hearing before the çif thereafter found by the court to be incounty judge of Anderson county sitting as corrigible and incapable of reformation, or a juvenile court under the said statute. dangerous to the community, is then to be

The case has been brought to this court, and remanded to the proper courts for the trial Childress seeks to escape the judgment be- of criminal offenses. So the proceedings in low by attacking the validity of chapter 58, a juvenile court are entirely distinct from Public Acts of 1911. It is insisted that said proceedings in the courts ordained to try act violates section 14, of art. 1 of the Con- persons for crime. stitution, to the effect:

Statutes like chapter 58 of the Public Acts “That no person shall be put to answer any of 1911 have been enacted in many of the criminal charge but by presentment, indictment states, and have been uniformly upheld. or impeachment." The statute mentioned outlines certain pro

This court, speaking of the commitment of ceedings to be had before the juvenile courts children to the state reformatory under a thereby established with reference to de. previous statute, has said: pendent, neglected, and delinquent children, ment is not in the nature of punishment. Such

"Such statutes are not penal, and commitand provides for the disposition, care, educa- an institution is a house of refuge, a schooltion, protection, etc., of such children. Any not a prison. The object is the upbuilding of child under the age of 16 years who vio- the inmate by industrial training, by education lates any law of the state is declared to be and instilling

principles of morality and religion,

, a delinquent child, and the juvenile courts corrupting influences of improper associates." are authorized to commit such a child to State ex rel. v. Kilvington, 100 Tenn. 227, 45 S. the state reformatory or otherwise dispose W. 433, 41 L. R. A. 284.

"The commitment of infants to industrial of the child as set forth in said act.

schools, reformatories, or houses of refuge by a Such proceedings before a juvenile court judge or justice without a trial is not in violado not amount to a trial of the child for any tion of the constitutional provisions relating to criminal offense. If it be found that the trial by jury. Such institutions are not prisons, child has violated a law of the state, then tion. The object of the commitment is not pun

and the proceeding is not a criminal prosecuhe may be adjudged a delinquent child with ishment, but reformation and education of the in the meaning of the act. The court, how- infant.

24 Cyc. 147. ever, does not undertake to punish the child To the effect that these statutes do not for the crime committed, but undertakes to interfere with constitutional rights to trial remove him from bad influences and to make by jury, or immunity from trial except upon such disposition of the child as to eradicate presentment or indictment, or with other evil propensities by education, wholesome constitutional rights, see Rooks v. Tindall, training, and moral instruction.

138 Ga. 863, 76 S. E. 378; Ex parte JanusAs pointed out by the court in Ex parte zewski (C. C.) 196 Fed. 123; Marlowe V. Januszewski (C. C.) 196 Fed. 123, the com- | Commonwealth, 142 Ky. 106, 133 S. W. 1137; mission of a crime by a child may set the Mill v. Brown, 31 Utah, 473, 88 Pac. 609, 120 juvenile court in motion, but the court does Am. St. Rep. 935; Lindsay v. Lindsay, 257 not try the delinquent minor for the crime. Ill. 328, 100 N. E. 892, 45 L. R. A. (N. S.) The crime being evidence of delinquency, the 908, Ann. Cas. 1914A, 1222. See, also, cases court undertakes to remedy the delinquency. collected in notes to 45 L. R. A. (N. S.) 908,

Our statute provides that a child who shall and 18 L. R. A. (N. S.) 886. have committed a misdemeanor or felony and The judgment of the juvenile court is afhas been adjudged to be a delinquent child, firmed.

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