Southern Railway Company v. David W. Hutchings, a Minor, by Next Friend, James H. Hutchings

I regret my inability to concur in the opinion of my learned brothers. I am unable to find the fact, or facts, from which a jury could infer that the plaintiff was an “obstruction which appeared upon the road” within the meaning of Section 65-1208(4), Tennessee Code, Annotated.

Under Tennessee law, the burden was upon plaintiff to show that he, in fact, had become an obstruction ahead of the train at a time when his presence as such was, or could have been, observed by the crew of the train. Cincinnati, N. O. & T. P. R. R. Co. v. Brock, 132 Tenn. 477, 178 S.W. 1115; Meador v. Nashville, C. &…