SOUTHERN RY. CO. v. SUTTON, 179 F. 471

KNAPPEN, Circuit Judge (after stating the facts as above). The statute upon which the plaintiff relies requires that a lookout shall be .kept upon the locomotive, and that when any “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.” A railroad company failing to observe these precautions is made responsible for all damages resulting from collision. Observance of this precaution relieves from liability in the cases to which the statute is held to apply.

Shannon’s Code Tenn. §§ 1574, (4), 1575, 1576. It is the settled rule declared by the Supreme Court of Tennessee, and adopted by this court, that the' liability created by the statute_ is absolute, and not dependent upon proof that the injury resulted from the failure to observe the statutory requirement; and that the liability resulting from such failure is not defeated by the contributory negligence of the person injured. Such contributory negligence may, however, be considered in the mitigation of damages. Railroad Co. v. Walker, 11 Heisk, 383; Railroad Co. v. Burke, 6 Cold. 45; Railway Co. v.

Howard, 90 Tenn. 144, 150, 19 S. W. 116; Railroad Co. v. Acuff, 92 Tenn. 26, 20 S. W. 348; Byrne v. K. C., Ft. S. & M. R. Co., 61 Fed. 605, 9 C. C. A. 666, 24 L. R. A. 693; Felton v. Newport, 105 Fed. 332, 44 C. C. A. 530; Rogers v. C., N. O. & T. P. R. Co., 136 Fed. 573, 69 C. C. A. 321.

It is equally well settled that the statute applies in every case to a person appearing upon the track, or so near thereto as to be within striking distance of the train; but that it is only when the obstruction so appears, either upon the track or within striking distance of the train, that the duty of employing the statutory precaution is imposed. Louisville, N. & Gt. So. R. Co. v. Reidmond, 11 Lea (Tenn.) 205; Railway Company v. Howard, supra; N. C. & St. L. R. Co. v. Seaborn, 85 Tenn. 391, 4 S. W. 661; Railroad Co. v. Crews, 118 Tenn. 65, 99 S. W. 368; Byrne v. K. C., Ft. S. & M. R. Co., supra; Felton v.

Newport, 105 Fed. 332, 44 C. C. A. 530; Louisville & N. Ry. Co. v. Truett, 111 Fed. 876, 50 C. C. A. 42; Rogers v. C., N. O. & T. P. R. Co., 136 Fed. 573, 69 C. C. A. 321; Virginia & S. W. R. Co. v. Hawk, 160 Fed. 348, 87 C. C. A. 300. That in this case a situation arose demanding the employment of the statutory precautions is clear. It is also clear that the defendant did not employ every possible means to stop the train and prevent an accident.

And it follows that if, when the defendant’s engineer suspended his precautions and restored the normal speed of the train, the plaintiff was still within “striking distance”' of the train, the defendant is liable. The apparent improbability that the plaintiff was struck while still walking upon the crosstiesis not material to the present inquiry.

If the jury disbelieved the plaintiff’s testimony in this regard, they might, still well find that he had not passed to a place of safety. ,The defendant contends that the statute is penal and must be strictly construed; that under such strict construction of the statute it should be held that the plaintiff was not within striking distance-, unless he was in position to be struck by the front of the engine; that if he was in such a location that, had he remained fixed and immovable, he would not have been struck, he could not have been-within “striking distance.” This court has recognized the penal naturé of the statute in question (Byrne v.

K. C., Ft. S. & M. R. Co., supra), and the statute is in derogation of the common law. But although penal laws and statutes in derogation of the common law are to be strictly construed, and not extended beyond their plain meaning, yet the intention of the Legislature must govern in the construction of penal as well as other statutes, and they are not to be construed so strictly as to defeat the obvious intention of the Legislature. United States v. Lacher, 134 U. S. 624, 10 Sup. Ct. 625, 33 L. Ed. 1080; United States v. Dillin (C. C. A. 6th circuit), 168 Fed. 813, 817, 818, 94 C. C. A. 337; United States v.

Illinois Central R. R. Co. (recently decided by this court) 177 Fed. 801. The Supreme Court of Tennessee has more than once declared that the statute should be rigidly enforced. Railroad Co. v. Scales, 2 Lea, 688; Railway Co. v. Howard, 90 Tenn. 144, 148, 19 S. W. 116. The question presented on this review is not, as suggested by plaintiff in error, whether the railroad company shall be held liable for not putting on the brakes and stopping the train in a case where the person passed by the train, after being once out of striking distance, shall fall or be thrown against the side of the train.

The real and decisive question is whether, after a situation has arisen requiring the railroad company to observe the statutory precautions, and after it has entered upon their observance, it may properly suspend or ignore them so long as the person entitled to the protection of the statute is “still so close to the track that, having due regard for the instinct of self-preservation and the involuntary movements of the body, there is still a reasonable probability or likelihood that he may fall or be thrown against the .side of the engine or train as it passes him.” The question is merely one of definition; that is to say, when one shall be held to be “beyond striking distance.” We find nothing in the decisions of the Supreme Court of Tennessee directly decisive of this question.

It must be answered in the light of reason, having in mind the object of the statute, the mischief it aims at, and the construction generally put upon the statute by the Supreme Court of Tennessee. As said by that court in N. & C. Railroad Co. v. Carroll, Adm’r, 6 Heisk. at page 368: “The question of what is, or what is not, an obstruction on a railroad track, ■is not a question on the terms used in art, nor within any of the rules laid down on this subject.

It is a simple question of fact, and can only mean that which may obstruct or hinder the free and safe passage of the train, or that which may receive an injury or damage, such as would be unlawful to inflict, ■if run over or against by the train, as in the case of stock, or a man approaching on the track.” The decision of this court in Louisville & N. R. Co. v. Truett, 111 Fed. 876, 50 C. C. A. 42, is pertinent. In that case a horse on which plaintiff’s decedent was riding, when about to cross the track, became frightened by the train and unmanageable.

It was plaintiff’s ■contention that while the horse was whirling about in his fright the •decedent was thrown against one of the cars in the train.

The question was, therefore, whether, although decedent “and his horse had .appeared upon the track, he had yet gotten far enough away from the running room of the train as to be passed safely by.” ■ Judge Sever-ens, with respect to this contention, said: “Accepting as correct the construction of the statute to be that where one who has appeared upon the track, and then gets away from it under circumstances which indicate that he is able to keep out of the way, but afterwardsgets back into collision with the train, there can be no recovery, we do not think that that consequence would follow if the man appears upon the track in such circumstances as that it is seen that he may be carried by a force beyond his control out of and into the danger line, only momentarily disappearing from the track. * * * We are unable to accept the proposition which seems to be contended for in the brief for plaintiff in error that if, at the-time when the engine passed, Truett was out of striking distance, that would relieve the company from the obligations imposed by the statute, but think that, as before indicated, the circumstances might be such as to justly induce-the expectation that before the train could pass it might come into collision with the party who had been seen upon the track but seen to be unable to-control his own movements.” In our opinion, taking into account the attracting and disturbing-force of a swiftly passing train, a person “still so close to the track that, having due regard for the instinct of self-preservation and the-involuntary movements of the body, there is still a reasonable probability or likelihood that he may fall or be thrown against the side of the engine or train as it passes him,” is as clearly within striking distance of the train as was the decedent in the Truett Case.

We find' nothing in the Tennessee decisions out of harmony with this construction. We think the trial judge rightly interpreted the statute in the definition given by him of striking distance. The judgment of the Circuit Court is, accordingly, affirmed.