This suit originated in Sumner County and resulted from the death of plaintiff's son and intestate, William Henry Law, alleged to have been killed by the Railroad Company's failure to observe Code, section 2628(4), which section requires every railroad to keep someone on the engine always on the lookout ahead; and when any person, animal, or other obstruction appears upon the track, to sound the alarm whistle, put down the *Page 689 brakes, and employ every reasonable means to stop the train and prevent an accident.
The deceased's body was found on the morning of July 3, 1940, near the track at a point between Portland and Gallatin. This point was about seven miles north of Gallatin.
The trial judge sustained a motion for a directed verdict at the close of the plaintiff's proof and dismissed the suit. On appeal, the Court of Appeals reversed the judgment of the circuit court and remanded the case for a new trial. Petition forcertiorari filed by the Railroad Company has been granted and the case argued at the bar of this Court.
The only question in the case is whether there was sufficient evidence, circumstantial or otherwise, to carry the case to the jury. There were no eyewitnesses and the evidence was wholly circumstantial.
The Court of Appeals found the circumstances as follows:
"He (deceased) was a boy, 18 years of age, intelligent, in all respects normal, of good reputation, and did not drink intoxicating liquors. He lived at South Tunnel, Sumner County, Tennessee, in his father's home, which was near defendant's railroad and about a mile south of where his body was found. On the night of July 2, 1940, he called on his sweetheart, Miss Cora Bush, at her home, which was about two miles north of his home and some distance (not clearly shown) west of the railroad. He wore a blue and white striped shirt, brown trousers, and his best `Sunday' shoes. He remained at Miss Bush's home from about 8 p.m. until about 11:30 p.m., talking with her, her mother, and others, playing a guitar, and was cheerful and happy. It was a rainy, stormy night, *Page 690 the wind was making a loud noise through the trees. For this reason Miss Bush's mother invited him to stay overnight, but he declined, and left to go home about 11:30. Miss Bush went out on the porch with him, and saw him start home, carrying a lighted flashlight, walking along a path which led from her home across a field to the road to South Tunnel. This, so far as appears, was the last time anyone saw him alive.
"On the way to his home, and about a mile from Miss Bush's home, this road passed from the west to the east side of the railroad, going through a creek beneath the railroad bridge, continued south along the east side of the railroad right of way, and followed the course of the railroad to South Tunnel, winding back and forth across the railroad two or three times on the way to that place. On the west side of the railroad and just before this road entered the creek under the railroad bridge, there was a well-defined gravel path, about ten paces in length, which led from the road up the embankment to the railroad track at the north approach of the railroad bridge.
"Plaintiff's theory is that the deceased was on his way home and when he came to this gravel path, instead of following the road on through the creek, he took this path up the embankment to the railroad track, walked south on the railroad bridge across the creek; and that, while so walking on the bridge or the track just south of the bridge, he was overtaken, struck and killed by a southbound train of defendant."
The railroad ran north and south and was level and straight for more than a mile in both directions. On the roadbed there was ballast or crushed stone between the crossties and about flush with the top of them. The *Page 691 railroad bridge was 88 feet long and was so constructed that pedestrians could use it for a walkway, but it was so narrow that one could not use it without being struck by a train crossing it.
Miss Bush testified that the shortest and most logical way for a person to walk from her home to South Tunnel was over the path from her home to the road, down the road to the path leading up the embankment to the railroad, thence across the railroad bridge and down the track to South Tunnel; and that on former occasions she had walked this way with the deceased to the railroad bridge.
The deceased left the home of Miss Bush about 11:30 P.M. and about twenty minutes later a southbound train, running several hours late, passed over the railroad bridge and the place where deceased was found next morning. This train was known as "Second 59" and consisted of an engine, tender, freight cars, and caboose.
The next morning deceased was found about 300 feet south of the railroad bridge, the body was laying face down on the east side of the track, some 6 or 8 feet from the roadbed. The head was pointing south and the feet north. A comb and a sack of smoking tobacco were found near the body. About 75 feet north of the body and between the rails there was blood, hair, parts of skull bone and brains, which were strewn south along the east rail, the ballast and the ties to where the body was lying. The shoes of the deceased had no mud on them. His shirt and trousers were badly torn on the right and in the rear. His wounds were a big gash on the top of his head, cuts on the left side of his nose and on his neck back of the right ear, face badly bruised, chin bone broken, right arm broken at elbow, cuts on both *Page 692 knees, right leg broken, collarbone broken on the right side, right shoulder broken, and right hip broken.
The Court of Appeals held that the jury could have reasonably inferred from these facts and circumstances that the boy did appear upon the track as an obstruction in front of the train and was killed by it. That Court stated that deceased was on his way home, and it seemed highly probable — so much so as to be reasonably certain — that instead of following the road on through the creek, he followed the gravel path up the north end of the railroad bridge across the stream south toward the point where the body was found. The Court of Appeals reasoned that it was natural to conclude that the deceased followed the usual way, and that from the circumstances it could be inferred that on this fatal night deceased was alive upon the track of the Railroad Company so as to become an obstruction; and that, therefore, it was the duty of the Railroad Company to prove, if such were the case, that it observed the statutory precautions as set out in section 2628(4) of the Code.
In Meador v. Nashville, C. St. L. Ry., 177 Tenn. 273,148 S.W.2d 371, 373, it appears that the deceased was seventy-one years of age, and that he lived in an easterly direction from Chattanooga on the Jenkins Road at a distance of thirteen miles. He was drawing an oldage pension of $18.50 per month. His wife had been confined to her bed with a broken hip since April 16, 1939. He had worried a great deal over his wife's condition, and it was telling on him and he had become absent-minded. On Friday, October 27, 1939, plaintiff asked deceased to go to Chattanooga and place an advertisement in the paper for a house, but he declined to go. The request was repeated the next day with the *Page 693 same result. That night deceased asked his son for his best pants, but for what purpose no one knows. Deceased went to bed that night, but got up and slipped off without saying anything to anyone. It does not appear whether or not he put on his best pants. About midnight, Herbert McDaris, a neighbor, while driving his automobile to Chattanooga, observed deceased standing on the side of the road facing it. McDaris observed a walking cane in his hand but could not tell which way he was traveling. He was about two miles west of his home on the Jenkins Road and three miles from where the Brainard Road crosses the viaduct over defendant's railroad. McDaris was the last person who saw the deceased alive. The most direct route from the home of the deceased, and the one usually traveled, was over the Jenkins Road until it intersects with the Brainard Road and then over the railroad across said viaduct to Chattanooga. The distance from the Brainard viaduct to Chattanooga is about eight miles, and one-half mile north of said viaduct the Lee Highway viaduct crosses defendant's railroad. To get from the Brainard viaduct down to the track one has to descend a 28-foot embankment. The railroad track between these two viaducts is heavy ballast, which makes walking on the track or crossties difficult. The ballast extended two feet beyond the crossties, and there was no path on either side of the track, but it appears that several feet from the end of the crossties the ground is smooth and is good for walking. The body of the deceased was discovered about noon the next day on the track about halfway between these two viaducts. The cane of the deceased was found first on the side of the track, then the cap, and next his head, all on the east side. The body was fifty feet down *Page 694 the track, having been dragged that distance between the rails.
In the Meador case this Court quotes from the opinion of the Court of Appeals as follows:
"The fact that the dead body was found between the rails, having been dragged along the track, without other evidential facts, raises no presumption that he was an obstruction while alive upon the track and was killed by the train."
The petitioner Railroad Company insists that the instant case is controlled by the Meador case. It is true that there are many facts in the Meador case quite similar to the present case, but it will be observed that in that case the deceased was seventy-one years of age, had worried a great deal over his wife's condition, and had become absent-minded. On the night that it is insisted he was killed by the Railway Company he had wandered away from home, and it could have been well concluded that he did not appear as an obstruction on the track alive at the time he was struck.
It is true that a verdict cannot be based on speculation, surmise or conjecture. Buckeye Cotton Oil Co. v. Campagna,146 Tenn. 389, 242 S.W. 646; De Glopper v. Railway LightCo., 123 Tenn. 633, 134 S.W. 609, 33 L.R.A. (N.S.), 913. In the last-cited case the Court held that the act which caused the injury and the negligence of the defendant in relation to the act cannot be inferred from the accident itself.
In Knoxville v. Wyrick, 99 Tenn. 500, 42 S.W. 434, and similar cases recoveries were sustained, but in all those cases the deceased persons were seen upon the track before being struck, and upon the logic of presumption that they continued upon the track, it was held that where *Page 695 it appeared that death had resulted from being struck by the train the plaintiffs had carried the burden of showing that their intestates appeared as obstructions.
We are of opinion, in the present case, upon all the facts and circumstances surrounding the death of the young man a presumption arose that he did appear upon the track as an obstruction and that this presumption prevailed until countervailing evidence was introduced. No such evidence having been introduced, the trial judge was in error in granting the motion for a directed verdict.
It results that the judgment of the Court of Appeals reversing the trial court in granting the motion for a directed verdict was correct.
The judgment of the Court of Appeals is therefore affirmed.
GREEN, C.J., and CHAMBLISS, J., concur.
DeHAVEN and NEIL, JJ., dissent.