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(— Tenn. --, 284 S. W. 894.)

but it was not contemplated by the statute that for such obstructions as these trains should be stopped, and passengers delayed."

Undoubtedly, a full-grown goose is in greater degree an obstruction than a small-sized dog. Can it be said that either is? And can the statute logically be held applicable to the dog, the cat, or the fox and not applicable to such a valuable fowl as the highly bred rooster, the turkey or the peacock?

In the comparatively recent case of Cincinnati, N. O. & T. P. R. Co. v. Ford, 139 Tenn. 291-295, 202 S. W. 72, 73, Chief Justice Green, denying recovery under the statute for an unregistered dog, while conceding that dogs are property, and that it had been recognized in Fink v. Evans, supra, that the statutory precautions apply to dogs on the track, significantly and pertinently to the present discussion, says: "A collision with an ordinary dog would not menace the safety of the passengers on a train, and there is no reason to observe the statutory precautions for this reason. On a like ground it has been held unnecessary to take statutory precautions to avoid a collision with a goose"citing Nashville & K. R. Co. v. Davis, supra.

That is, neither a goose nor a dog is an obstruction to a railway train, and human life, the protection of which is the primary purpose of the statute, is not imperiled by failure to observe these requirements when these objects appear. If this is the purpose of these rigid requirements, then should not the application of this statute be limited to "persons" -human life-on the track, and to such animals or other obstructions only as may imperil lives on the train?

An analysis of the language of the act would seem to

Railroads-duty

dog.

to avoid hitting support this view. It is apparent that in carrying out this fundamental or primary purpose appropriate language has been used: "When any person, animal, or other obstruction

That

appears upon the road," etc.
which calls for the taking of these
statutory precautions, failure to ob-
serve which entails drastic penal-
ties, must be of a character which
in some appreciable degree consti-
tutes an obstruction to the free pas-
sage of the train, with danger to the
lives and limbs of persons riding
thereon.

Nor is the realm of technicality invaded if the word "obstruction" be thus given its ordinary, everyday meaning. It is defined in Webster's New International Dictionary as "that which obstructs or impedes; obstacle; impediment; hindrance. Sny.-Bar, barrier, clog, check." So, to obstruct is "to block up; to stop up or close, as a way."

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This court has said that obstruction "can only mean that which may . . . 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 case of stock, or a man approaching on the track." Nashville & C. R. Co. v. Carroll, 6 Heisk. 347.

But,

It may be said that the strict limitation of the statute to an obstruction on the track, under the modern conditions above noted, would exclude a child, or any person. in harmony with the underlying purpose of the legislation as above stated, which is to protect human life, this exception to the restriction to what are properly obstructions can be consistently recognized and enforced.

Moreover, it will be observed that we are not here dealing with a case of live stock, a dog being an animal clearly not within that definition. There is no difficulty in defining stock or live stock, specifically protected by the Act of 1891, chap. 101. The term includes "domestic animals used or raised on a farm; especially cattle, sheep, hogs, etc." International Dictionary. And dogs are not stock or live stock within the meaning of such statutes. 33 Cyc. 1165, and cases cited.

It is well settled, since the pas

sage of the railroad fencing act (Acts 1891, chap. 101), that the statutory precautions provided for by subsection 4 of § 1574 of Shannon's Code have no relation to the liability of railroads for injury to live stock, except under special station or crossing conditions. Illinois C. R. Co. v. Crider, 91 Tenn. 507, 19 S. W. 618; Cincinnati, N. O. & T. P. R. Co. v. Russell, 92 Tenn. 108-111, 20 S. W. 784; Cincinnati, N. O. & T. P. R. Co. v. Stonecipher, 95 Tenn. 311, 32 S. W. 208; Mobile & O. R. Co. v. House, 96 Tenn. 557, 35 S. W. 561; Mobile & O. R. Co. v. Tiernan, 102 Tenn. 708, 52 S. W. 179.

And, in passing, it may be remarked that, if the statutory precautions now apply to a dog on the track, then the result of our legislation, taking subsection 4 and the Act of 1891 together, is to relieve the railroad company from liability for the killing of valuable live stock on its fenced track, while fastening liability for the killing of a dog under like conditions. Certainly a deduction which would call for the observance of statutory precautions in the case of a dog and not in the case of a horse, cow, or other live stock, should invite careful analysis.

The original statutory precautions act was passed some seventyfive years ago. It is more than thirty years since the opinion was written in Fink v. Evans, 95 Tenn. 413, 32 S. W. 307, wherein recognition was passingly given to the inclusion of dogs within the terms of the statute, and nearly a quarter of a century has now passed since the opinion of Mr. Justice Wilkes, above quoted from at length, was written.

It is a matter of common knowledge that such has been the development of railways in strength and steadiness of roadbeds and in weight and power of movable equipment, that objects which formed obstructions seventy-five, or even twenty-five, years ago, are such no longer. In the earlier days of railroading, when rails were light and insecurely held together, loco

motives small, and cars of wood and relatively weak in structure, collisions with comparatively small animals and other objects naturally and frequently resulted in derailments and kindred accidents fatal to crews and passengers. But under present conditions a dog of average size is certainly no more an obstruction to the mighty moving trains of modern commerce than was the goose in 1902, or the "snakes, frogs, and fishing worms" of which Mr. Justice Wilkes then wrote. While in that opinion suggestion was made of a possible differentiation between bird life and other animal life, the real reasoning leads logically to the basis we now adopt, that is, the distinction between objects on the track, other than human beings, embraced in the statute on grounds already stated, of such size and character as to constitute obstructions, and those so relatively inconsequential in this regard as not possibly to come within this definition.

The principle which would seem reasonably to apply does not particularize this or that animal, but rests logically upon the question of relative size and consequent resist ance, or obstruction. The bird nature of the goose affords no truly distinctive basis. The wings of the slow-footed goose offer no quicker means of removal than the fleet feet of the cat or fox or dog. The emergency movement called for is lateral and not upward. Neither the quality of obstruction, nor that of facil ity or removal, is greater in the goose than in the animals named and in others that might be named.

Moreover, by the Act of 1891, supra, railroad companies were declared liable for all damages by rea son of the killing or injury of live stock upon or near their unfenced tracks by their moving trains, cars, or engines. This act contains several sections, and the word "stock" is used throughout. The effect of the act is to make railroad companies absolutely responsible for stock killed on their unfenced tracks and to relieve railroad companies of the

(Tenn. 284 S. W. 894.) observance on their fenced tracks of the precautions required by subsection 4 of Shannon's Code, § 1574, for the protection of such stock.

The purpose of the act of 1891 was likewise the prevention of accidents on railroads. Illinois C. R. Co. v. Crider, 91 Tenn. 489, 19 S. W. 618, supra. "To induce railroad companies to fence their tracks, primarily in the interest of the traveling public, and, secondarily, for the protection of live stock along the line of travel." Cincinnati, N. O. & T. P. R. Co. v. Russell, 92 Tenn. 108, 20 S. W. 784.

This act was designed to supersede subsection 4 of Shannon's Code, § 1574, in respect to the duties of railroad companies as to live stock on all parts of their lines to which the fencing statute applied. Cincinnati, N. O. & T. P. R. Co. v. Russell, supra; Mobile & O. R. Co. v. Tiernan, supra, 704 [52 S. W. 179]; Louisville & N. R. Co. v. Patton, 104 Tenn. 40, 54 S. W. 984.

Statutes-con

materia.

It thus appears that chapter 101 of the Acts of 1891 was supplementary to Shannon's Code, § 1574, and was part of a scheme or plan for the prevention of accidents upon railroads, primarily, and for the protection of live stock, secondarily. That is to say, the Code struction in pari provision and the Act of 1891 are statutes in pari materia, and they should be construed together. Statutes forming a system or scheme should be construed so as to make that scheme consistent in all its parts and uniform in its operation. Harris v. State, 96 Tenn. 496, 34 S. W. 1017; Stonega Coke & Coal Co. v. Southern Steel Co. 123 Tenn. 428, 31 L.R.A. (N.S.) 278, 131 S. W. 988; Bird v. State, 131 Tenn. 518, 175 S. W. 554, Ann. Cas. 1917A, 634. All acts in pari materia should be taken together as if one law. Merriman v. Lacefield, 4 Heisk. 209.

-forming

scheme-construction.

Since we cannot give to the word animal, as used in the Code section mentioned, its broadest significance,

and the meaning of this word must be determined by construction, under familiar rules, we should look to other statutes in pari materia with the Code section to arrive at the meaning of that section. The legislative intent is to be ascertained from a statute in connection with other statutes -how legislaon the same subject, lative intent asand not merely from a strict and accurate definition of the words alone. Pond v. Trigg, 5 Heisk. 532; J. W. Kelly & Co. v. State, 123 Tenn. 516, 132 S. W. 193; State v. Cumberland Club, 136 Tenn. 84, 188 S. W. 583.

certained.

"In the passage of each act, the legislative body must be supposed to have had in mind and in contemplation the existing legislation on the same subject, and to have shaped its new enactment with reference thereto. Hence the same principle which requires us to study the context for the meaning of a particular phrase or provision, and which directs us to compare all of the several parts of the same statute, only takes us on a broader scope when it bids us read together, and with reference to each other, all statutes in pari materia." Black, Interpretation of Law, p. 204, quoted and followed in J. W. Kelly & Co. v. State, 123 Tenn. 516, 132 S. W. 193.

Applying the foregoing rule of construction, and taking Shannon's Code, § 1574, and chapter 101 of the Acts of 1891, together as one law, we think that the use of the word "stock" in the act of 1891 makes plain the meaning of the word "animal" in the Code section, and that in this scheme of legislation these two words are used synonymously. Such construction renders the system consistent in all its parts and uniform in its operation.

We think therefore that, by chapter 101 of the Acts of 1891, the legislature not only intended to pass an additional measure for the prevention of accidents and the protection of property, but, by the use of the word "stock," it was the legislative intent to more clearly define what

animals were included in this protective scheme.

It results that, both because a dog is not an obstruction in the contemplation of subsection 4, § 1574 of Shannon's Code, and also because a dog is not the character of animal intended to be protected by this statute when construed along with chapter 101 of the Acts of 1891, this suit based on subsection 4, supra, was rightly dismissed.

The dog has frequently great value, both actual and sentimental. He is the proverbially faithful friend of man. Reckless and wanton injury of him is universally condemned, and the courts are ever open to his master for redress of such injuries, and also of those inflicted through common-law negligence only.

The nonapplicability of this statute is extended under present day conditions to the dog, as it has heretofore been to the fowl, often of high value, and to the "snake, frog, or fishing worm," and as it must be extended to all other domestic or wild animals of such relatively small size as that their bodies offer no impediment, resistance, or "obstruction" to the passage of the modern train.

Upon the facts proven in the instant case, it is plausibly insisted, under the second ground of defense,

that the conduct of this animal and his master was such as to bring this case within the authority of N. C. & St. L. R. Co. v. Riley (Henderson Law, 1906, memorandum opinion). In that case, in which recovery was denied, it was found that the plaintiff was a hunter who "chose to expose his dogs to the danger of the passing train by allowing and encouraging them to go down the track and cross this trestle, when he knew that the train was due." A case of deliberate and practically intentional destruction of his dogs was made out, going beyond even gross negligence.

However, in view of the conclusion reached and already stated with respect to the first ground of defense, it becomes unnecessary to determine the issues of law and fact arising out of the conduct of the owner in negligently co-operating in the trespass which resulted in the accident, or to consider the interstate commerce or constitutional questions made by other pleas. The judgment is affirmed.

Chief Justice Green concurs in the result, but on the ground only that a dog is not the character of animal intended to be protected by the precautionary signal statute when construed in pari materia with chapter 101 of the Acts of 1891.

ANNOTATION.

Dogs as within contemplation of statutes as to duty of railroads as regards

live stock.

[Railroads, §§ 154, 156-158.]

"At the present day there exists a noticeable tendency to eliminate the inconsistencies of the old rules, and both in legislation and judicial decisions to recognize a full and complete property in dogs. They are now generally considered as domestic animals, as much the subject of property or ownership as horses, cattle, and sheep." 1 R. C. L. 1114 (Animals, § 58).

The question now under annotation, however, as the title indicates, is merely whether dogs are within the contem

plation of specific statutes as to duty of railroad companies as regards live stock.

The reported case (HOWARD & HERRIN V. NASHVILLE, C. & ST. L. R. Co. ante, 1530), it will be noted, holds that dogs were not contemplated by the statute which imposed upon railroads the duty to keep a lookout ahead and to employ precautionary measures when any "person, animal, or other obstruction" should appear upon the road, in view of a subsequent statute

which made railroads liable for live stock killed on unfenced tracks, and relieved them from employing precautionary measures in respect to stock on fenced tracks, the latter statute having been enacted "to induce railroad companies to fence their tracks, primarily in the interest of the traveling public, and secondarily for the protection of live stock along the line of travel" the ground of the decision being that dogs were not live stock, and that it would be inconsistent to require more precaution as to dogs than as to live stock. The court considered it unreasonable, under modern conditions, to apply the former statute to an animal of the relatively slight weight and size of the average dog, since the legislature's primary object was to protect the lives of the people on the trains, which were not imperiled by running over a dog.

As the court indicated in the reported case, it had previously considered, in Finch v. Evans (1895) 95 Tenn. 413, 32 S. W. 307, that a dog was contemplated by the first-mentioned statute, but the decision in the Finch Case rested upon the ground that there was no evidence that the railroad had failed to exercise such precautions. For a similar dictum, see Citizens' Rapid Transit Co. v. Dew (1898) 100 Tenn. 321, 40 L.R.A. 518, 66 Am. St. Rep. 754, 45 S. W. 790. And see Southern R. Co. v. Oliver (1912) 3 Tenn. C. C. A. 408.

(In Finch v. Evans (Tenn.) supra, the court expressed the opinion that it would be requiring too great diligence for the engineer to whistle for each particular dog, when several were coming towards the locomotive, more especially as he had no means of informing each dog that any special whistle was sounded for him.)

Upon the assumption that the action, for killing a dog, was brought for a violation of such statutory precautions, the court in Cincinnati, N. O. & T. P. R. Co. v. Ford (1918) 139 Tenn. 291, 202 S. W. 72, after stating that recovery must be denied, by reason of the statute which declared the running at large of an unregistered female dog to be a public nuisance, said, further, 46 A.L.R.-97.

that a collision with an ordinary dog would not menace the safety of the passengers on a train, and that accordingly there was no reason to observe such precaution.

Upon the ground that a fencing statute applied only to stock, and not to dogs, the railroad company's compliance therewith was held not to relieve it of the duty to avoid the negligent killing of a dog, in Louisville & N. R. Co. v. Carter (1925) 213 Ala. 393, 104 So. 754.

In Texas & P. R. Co. v. Scott (1891) 4 Tex. App. Civ. Cas. (Willson) 476, 17 S. W. 1116, where the owner of a dog apparently sought to rely upon the railroad's failure to comply with a fencing statute, the court said that a dog was not "stock" within the meaning of such statute, and that hence railroads were not required to fence against that character of animal.

Although no particular statute was referred to in Jemison v. Southwestern R. Co. (1885) 75 Ga. 444, 58 Am. Rep. 476, the court said: "That the owner, by the common law and under our Code, may maintain trespass vi et armis for wantonly and maliciously killing his dog, is not questioned, but it is equally clear by that law that he could not maintain case for its unintentional, though negligent destruction." And the court expressly refused to overrule the above decision in Strong v. Georgia R. & Electric Co. (1903) 118 Ga. 515, 45 S. E. 366, Cobb, J., remarking that the silence of the legislature for eighteen years was indicative of its policy on the subject of the status of the dog in that state, so far as the liability of railroad companies was concerned.

See also Gaddis v. Southern R. Co. (1911) 9 Ga. App. 272, 71 S. E. 7.

But in holding a railroad company liable for the wanton and malicious killing of a dog, the same court, in Columbus R. Co. v. Woolfolk (1907) 128 Ga. 631, 10 L.R.A. (N.S.) 1136, 119 Am. St. Rep. 404, 58 S. E. 152, said that it would appear that the rule in the Jemison Case, which declared that the owner could not recover for the "unintentioral, though negligent, destruction" of his dog, was extremely tech

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