“The word ‘vicinity’ is a relative term, and there is nothing erroneous or inaccurate in referring to a spring or a home situated two miles from a railroad station as being in the vicinity of such station.”
How later courts described this case
- “The word ‘vicinity’ is a relative term, and there is nothing erroneous or inaccurate in referring to a spring or a home situated two miles from a railroad station as being in the vicinity of such station.”
- “The act which caused the injury and the negligence of defendant in relation to the act” - 26 - cannot ‘be inferred from the accident itself.’”
Written by the judges who cited it.
The opinion
Crownover, Judge
(dissenting).
In this ease, I am compelled to dissent. I think there are many circumstances proven sufficient to carry the ease to the jury. The last person who saw the deceased while alive says he was sober; hence, he was in his right mind and had his normal senses.
“There is a presumption arising out of the instinct of self-preservation that a decedent was in the exercise of ordinary care when fatally injured, prevailing until overcome by competent evidence, and which may prevail where there are no eye-witnesses of or any direct testimony as to his conduct.” Tennessee Cent. Railroad Co. v. Herb, 134 Tenn. 397, 183 , S. W. 1011; Tennessee Cent. Railroad v. Dial, 16 Tenn. App. 646 , 65 S.
W.
(2d) 610 .
There is a presumption that the deceased exercised ordinary care for his own protection. 45 C. J. 1155-1162; 22 C. J. 94, 95; 20 R. C. L. 199 ;j 1 Jones on Evid. (2d Ed.) 421, 422, sec. 257. He was killed by the train, and the facts will not admit of a theory that he boarded the train at the station or that he wandered off the bluff into the side of the train, as his shoes were found some distance up the track. There is no evidence that the train knocked his shoes off, and he didn't have time to pull them off while on the train.
The natural inference from the facts proven is that he went down on the track, pulled off his shoes, and was struck by a passing train. Several -trains evidently passed over his body and no trainmen saw him; and the inspectors of the engines saw no evidence of a collision; hence, I think that no reasonable theory can be entertained other than that he was an obstruction on the track when killed. There is no evidence that remotely points to the theory that he was killed and put on the track; hence, I think there was sufficient evidence for the case to be submitted to the jury.