The body of plaintiff's decedent was found in a badly mutilated condition in a ditch several feet east of the ties of defendant's tracks. About seventy-five feet north of where the body was found there were bits of blood and flesh on the east rail and east end of the ties of the track, about two hundred and twenty-five to two hundred and fifty feet from the south end of a railroad trestle. The body was found at about 10 o'clock on the morning of July 3, 1940.
On the evening of July 2nd, deceased called on a young lady who lived about two miles north of his own home at South Tunnell, Tennessee, remaining there until about 11:30 P.M. It was raining and the night was blustery. When deceased left the home of the young lady he had his lighted flashlight in his hand and he walked away down a path which led easterly across a field and connected with a road which ran north and south. This road if followed to the south, leads to a point where it crosses through a creek under the railroad trestle at Buck Lodge, Tennessee. If followed to the north, this road leads to a point where it crosses defendant's tracks much further away from the home of deceased. The distance from where the path from the home of the young lady enters the road to the railroad trestle over the creek is about one mile. From the time deceased went down this path he was not seen alive by anyone. There *Page 704 is a complete hiatus in the proof as to the movements of the deceased after 11:30 o'clock on the night of July 2nd. What he did, which way he went, after that hour is a matter of pure conjecture and speculation. From the location and condition of his body, when found, and from the blood and flesh on the east rail and east end of the cross-ties of the track, it appears the body was struck by a train. From these facts alone, plaintiff seeks to draw the conclusion that deceased appeared alive as an obstruction upon the railroad or within the sweep of a train. Upon this hypothesis, plaintiff invokes the railroad precautions statute, Code, sec. 2628 (4).
Before Code, sec. 2628(4) becomes applicable in a given case, the plaintiff must first establish that the deceased, or injured party, appeared alive as an obstruction on the track in front of the moving train, or so near thereto as to be struck by the train. Unless, therefore, deceased appeared as an obstruction upon the road the duty of the engine men cannot be tested by sub-section (4). Gaines v. Tennessee Cent. Ry., 175 Tenn. 389, 393, 135 S.W.2d 441.
The theory of plaintiff is that the deceased went south on the road above referred to and when he reached the point where the creek flowed over the road, he ascended a path up the railroad embankment and crossed the railroad trestle and while walking along the track was struck by a moving train. This theory rests upon mere conjecture, surmise and possibilities. I think this case is governed by Meador v. Nashville, C. St. L. Ry.,177 Tenn. 273, 148 S.W.2d 371, and the authorities therein cited.
For the reasons stated I am constrained to dissent from the decision of the case.
NEIL, J., concurs.
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