65-1-101. Creation — Commissioners — Qualifications — Appointments — Vacancies — Term of office.

1. There is created the Tennessee public utility commission consisting of five (5) part-time commissioners. The commissioners shall be appointed as follows: one (1) commissioner shall be appointed by the governor, one (1) commissioner shall be appointed by the speaker of the senate, one (1) commissioner shall be appointed by the speaker of the house of representatives, and two (2) commissioners shall be appointed by joint agreement among the governor, the speaker of the senate and the speaker of the house of representatives. In making the appointments pursuant to this subsection (a), the governor, the speaker of the senate and the speaker of the house of representatives shall strive to ensure that the Tennessee public utility commission is composed of commissioners who are diverse in professional or educational background, ethnicity, geographic residency, perspective and experience.
2. Each commissioner of the commission shall have at a minimum a bachelor's degree and at least three (3) years' experience in a regulated utility industry, in executive level management, or in one (1) or more of the following fields:
   1. Economics;
   2. Law;
   3. Finance;
   4. Accounting; or
   5. Engineering.
3. The commissioners of the commission shall be state officers and, except for the staggered terms provided in subsection (h), shall serve six-year terms.
4. The governor, the speaker of the senate, and the speaker of the house of representatives shall make appointments by April 1, prior to the expiration of the terms of office of the commissioners.
5. The term of office of each commissioner shall commence on July 1, following such commissioner's appointment.
6. All appointments of the commissioners shall be confirmed by joint resolution adopted by each house of the general assembly within thirty (30) days after the appointment.
7. Any vacancy on the commission shall be filled by the original appointing authority for such position to serve the unexpired term and each appointment shall be confirmed in the same manner as the original appointment. If, however, the general assembly is not in session and a vacancy occurs, the appropriate appointing authority shall fill such vacancy by appointment and the appointee shall serve the unexpired term, unless the appointment is not confirmed within thirty (30) days after the general assembly convenes following the appointment to fill such vacancy.
8. The terms of current commissioners appointed during 2008 and commissioners appointed during 2012 shall be staggered and shall expire as follows:
   1. The terms of the existing commissioners appointed by the speaker of the house of representatives and the speaker of the senate shall expire on June 30, 2014;
   2. The term of the existing commissioner appointed by the governor shall expire on June 30, 2017;
   3. The terms of the joint commissioners commencing on July 1, 2012, shall expire on June 30, 2018.
9. A commissioner shall continue to serve until the commissioner's successor is appointed.

Acts 1995, ch. 305, §§ 4, 5; 2002, ch. 826, § 3; T.C.A. § 65-1-201; Acts 2012, ch. 1070, § 1; 2017, ch. 94, §§ 45, 47.

Compiler's Notes. The Tennessee Public Utility Commission, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Former chapter, §§ 65-1-101 — 65-1-117 (Acts 1897, ch. 10, §§ 1-7, 27, 31; 1907, ch. 390, § 1; 1913, ch. 10, § 1;

Shan. §§ 3059a5-3059a11, 3059a13-3059a21, 3059a62, 3059a68; Acts 1919, ch. 3, § 19; 1919, ch. 49, §§ 1, 3; mod. Code 1932, §§ 5380-5386, 5388-5393, 5395, 5396, 5438, 5444; impl. am. Acts 1937, ch. 33, §§ 24, 29; Acts 1947, ch. 39, § 1; impl. am. Acts 1949, ch. 38, § 1; Acts 1949, ch. 196, § 1; C. Supp. 1950, § 5383; Acts 1953, ch. 183, § 1; impl. am. Acts 1955, ch. 69, § 1; 1955, ch. 105, § 1; impl. am. Acts 1955, ch. 193, § 1; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; Acts 1965, ch. 308, § 2; 1976, ch. 806, § 1 (124); 1979, ch. 230, § 1; T.C.A. (orig. ed.), §§ 65-101 — 65-104, 65-106 — 65-116, 65-118, 65-119, 65-121; Acts 1982, ch. 871, § 1; 1992, ch. 871, § 1; 1993, ch. 382, § 1; 1994, ch. 913, § 1) concerning the public service commission, was repealed by Acts 1995, ch. 305, § 5, effective July 1, 1996.

Former § 65-1-114 (Acts 1897, ch. 10, § 6; Shan., § 3059a19; Code 1932, § 5394; Acts 1979, ch. 230, § 1; T.C.A. (orig. ed.), § 65-117), concerning certified copies as evidence, was previously repealed by Acts 1991, ch. 273, § 35.

Acts 1995, ch. 305, § 4 provided that it is the intention of the general assembly that the evaluation committee reviewing the Tennessee regulatory authority pursuant to the Tennessee governmental entity review law consider the method of selection of the directors of such authority and report its recommendations on such selection process to the general assembly with its recommendations to continue, restructure or reestablish the Tennessee regulatory authority as a part of its normal review of the entity pursuant to § 4-29-223.

Acts 1995, ch. 305, § 6 provided that any duty or responsibility assigned to the public service commission pursuant to the provisions of this title, or any other provision of law which has not been transferred to an executive branch agency by the provisions of Acts 1995, ch. 305 is transferred to the Tennessee regulatory authority.

Acts 1995, ch. 305, § 7 provided that all rules of the public service commission in effect on May 26, 1995, shall remain in full force and effect as rules of the Tennessee regulatory authority and as rules of the appropriate departments until modified or repealed by the authority or appropriate department.

Acts 1995, ch. 305, § 11 provided:

“In order to carry out its functions, duties and responsibilities maintained under the provisions of this act, the public service commission shall retain and have the authority to exercise any and all of its powers and duties existing under Title 65 prior to enactment of this act, including, but not limited to, the power to subpoena, the power to take evidence, and the power to examine. Upon the termination of the public service commission, the Tennessee regulatory authority is expressly granted the same powers and duties as set forth above for the public service commission in order to carry out its responsibilities established by the provisions of this act.”

Acts 1995, ch. 305, § 45 provided:

“(a)  Notwithstanding any provision of law to the contrary, upon the effective date of this section [July 1, 1996], all remaining employees of the public service commission not transferred by Sections 44, 46, and 47 of this act charged with the responsibility of regulating and enforcing the provisions of Tennessee Code Annotated, Title 65, and any other employees of the public service commission necessary to assist in such regulating and enforcing, shall be transferred to the Tennessee regulatory authority created by this act. (b) All reports, documents, surveys, books, records, papers or other writings in the possession of the public service commission with respect to administering the provisions of Title 65, assigned to the Tennessee regulatory authority by this act, shall be transferred to and remain in the custody of the Tennessee regulatory authority. (c) All leases, contracts and all contract rights, and responsibilities in existence with the public service commission with respect to the duties transferred by this section shall be preserved and transferred to the Tennessee regulatory authority. (d) All assets, liabilities and obligations of the public service commission with respect to the duties transferred by this section shall become the assets, liabilities and obligations of the Tennessee regulatory authority. (e) Any revenues from rates, fares, charges, fines, and other moneys received pursuant to Tennessee Code Annotated, Title 65, an assigned to the Tennessee regulatory authority by this act as approved by the transition team pursuant to Section 48, shall be allocated to the Tennessee regulatory authority to implement the provisions of this act. (f) The authority shall promulgate rules and regulations pursuant to Title 4, Chapter 5, to effectuate the purposes of this act.”

Acts 1995, ch. 305, § 54 provided that as sections, parts, titles, chapters and volumes of Tennessee Code Annotated are amended, repealed, revised and replaced, the Tennessee code commission is directed to change references to the public service commission to references to the Tennessee regulatory authority and/or to appropriate departments to which duties and responsibilities of the public service commission have been transferred by the provisions of Acts 1995, ch. 305. After the effective date of Acts 1995, ch. 305 (see individual sections), any reference to the public service commission shall be deemed to be a reference to the Tennessee regulatory authority or appropriate department as provided by the provisions of Acts 1995, ch. 305.

Acts 1995, ch. 305, § 136 provided that for the purposes of transition, references to the public service commission may be deemed to be references to the Tennessee regulatory authority, the department of transportation, the department of safety, and the comptroller of the treasury, and references to the Tennessee regulatory authority may be deemed to be references to the public service commission, to accommodate the transition plans developed pursuant to § 65-1-301 (now § 65-1-201).

Acts 2002, ch. 826, § 7 provided that confirmations of appointments made or begun prior to July 1, 2002, remain in full force and effect and appointments made pursuant to such confirmations shall remain valid appointments.

Section 65-1-305 was transferred to § 65-1-114 in 2004.

Former § 65-1-306 (Acts 1996, ch. 931, § 1), concerning waiver of competitive process for former public service commission employees, was repealed by Acts 1996, ch. 931, § 3, effective December 31, 1996.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” in the first sentence of (a); substituted “commission for “authority” and “commissioner” and “commissioners” for “director” and “directors” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Cross-References. Assessment of railroads and utilities for tax purposes, title 67, ch. 5, part 13.

Grand divisions, title 4, ch. 1, part 2.

Salaries of commissioners, § 8-23-101.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, §§ 49, 58; 13 Tenn. Juris., Gas Companies, § 2; 21 Tenn. Juris., Public Service Commissions, § 3.

Law Reviews.

Electricity — Original Jurisdiction of the Public Utility Commission, 14 Tenn. L. Rev. 639 (1937).

Attorney General Opinions. Transfer of functions of commission, OAG 95-043, 1995 Tenn. AG LEXIS 42 (4/24/95).

If the Tennessee regulatory authority's current directors are not reappointed, and if there are no new appointments to the director positions, the current directors will continue to hold their offices and to exercise their powers and perform their duties until their successors are duly appointed and confirmed by the general assembly; if one of the current directors refuses to continue in office, thereby creating a vacancy, the appointing authority may fill the vacancy by appointment; if the general assembly is in session when the vacancy occurs, the new appointment must be confirmed in the same manner as the original appointment; and if the general assembly is not in session when the vacancy occurs, the appointee may serve until the general assembly reconvenes and votes on confirmation of the appointment, OAG 02-060, 2002 Tenn. AG LEXIS 65 (5/7/02).

Amendments by Acts 2012, ch. 1070.  OAG 12-71, 2012 Tenn. AG LEXIS 71 (7/13/12).

65-1-102. Commissioners — Prohibited activities.

1. No commissioner shall hold any other public office, under either the government of the United States or the government of this or any other state, nor shall any commissioner, while acting as such, engage in any business or occupation inconsistent with such person's duties as a commissioner. No commissioner shall be eligible to qualify as a candidate for any elected office unless such commissioner resigns from the commission prior to qualifying as a candidate. For the purposes of this section, “qualify as a candidate” means filing a statement certifying the name and address of a political treasurer pursuant to § 2-10-105(e).
2. No person who owns, in an individual capacity or jointly with another person, any bonds, stocks, equity interest or other property in any business or entity regulated by the Tennessee public utility commission, or who is an agent or employee in any way of any such business or entity, shall be eligible to serve as a commissioner of the Tennessee public utility commission.
3. 1. No commissioner shall raise funds or solicit contributions for any political candidate or political party, or, except as provided in subdivision (c)(2), actively campaign for any candidate for public office.
   2. 1. A commissioner shall be permitted to actively campaign for an “immediate family member” as that phrase is defined in § 8-50-502(8).
      2. The mere attendance of a commissioner at a political event or politically oriented event shall not constitute a violation of subdivision (c)(1).
      3. A commissioner's alleged violation of this subsection (c) shall be treated in the same manner as if such commissioner were a judge covered by Rule 10 of the Rules of the Supreme Court.
4. No commissioner shall enter into an employment relationship, a consulting or representation agreement, or other similar contract or agreement with either an entity regulated by the commission or a subcontractor of such an entity for a period of one (1) year after the commissioner ceases to serve as a commissioner of the commission.

Acts 1995, ch. 305, § 5; 1996, ch. 636, § 1; 2001, ch. 450, § 1; T.C.A. § 65-1-202; Acts 2013, ch. 245, § 2; 2017, ch. 94, §§ 45-47.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” in (b); substituted “commission” for “authority” and “commissioner” and “commissioners” for “director” and “directors” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-103. Meetings.

1. The commissioners shall convene regular monthly meetings and shall remain in session until all business before them is disposed of, and shall hold other sessions at such times and places as may be necessary for the proper discharge of their duties. If the business of the commission does not require a monthly meeting, a majority of the commissioners may waive the requirement of a meeting.
2. All decisions of the Tennessee public utility commission pertaining to dispositions to or from any deferred revenue account shall be made in a public meeting of the commission. The attorney general and reporter and any other interested party shall be given adequate notice of the meeting and shall be given the opportunity to present oral and written testimony. As used in this section, “deferred revenue account” means any account created for the excess earnings from utilities regulated by the Tennessee public utility commission.

Acts 1995, ch. 305,  § 5; T.C.A. § 65-1-203; Acts 2012, ch. 1070, § 2; 2017, ch. 94, §§ 45-47.

Amendments. The 2017 amendment substituted “commissioners” for “directors” twice in (a); substituted “the commission” for “the authority” in the second sentence of (a) and in the first sentence of (b); and substituted “Tennessee public utility commission” for “Tennessee Regulatory Authority” twice in (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-104. Quorum — Chair and vice chair — Panels.

1. A majority of the commissioners of the Tennessee public utility commission shall constitute a quorum for the transaction of business. The commission shall elect one (1) of its commissioners to be the chair of the commission for a two-year term and shall elect one (1) of its commissioners to be the vice chair of the commission for a two-year term. The vice chair shall assume the role of chair at the expiration of the chair's two-year term.
2. The chair and vice chair of the commission may be removed by a majority vote of the disinterested commissioners.
3. The chair shall have the primary responsibility of formulating the broad strategies, goals, objectives, long-range plans and policies of the commission, in conjunction with the commissioners. The chair shall also have the power and duty to conduct ordinary and necessary business in the name of the commission. Such duties include, but are not limited to, the following:
   1. Giving notice of, and agendas for, all meetings of the commission to all commissioners in advance of the meeting;
   2. Assigning matters to be heard by panels in accordance with this section;
   3. Preparing and calling the docket items to be heard during each scheduled meeting of the commission;
   4. Keeping the official, full and correct record of all proceedings and transactions of the commission;
   5. Serving as the designated contact for all media inquiries to the commission;
   6. Ensuring that orders by the commission are issued in a timely manner and in accordance with the rules and procedures established by the executive director;
   7. Conducting a yearly performance evaluation of the executive director, which shall be submitted to the governor;
   8. Delegating duties of the chair to the vice chair; and
   9. Performing such other duties as the commission may assign or as may be required by statute, rule or regulation.
4. The chair shall assign each matter before the commission to a panel of three (3) voting members, from among the commissioners. The remaining two (2) voting members of the commission, who are not assigned to a particular panel, shall not vote or deliberate regarding such matters. The commission shall establish reasonable procedures for rotating the commissioners for assignments to panels in an efficient manner. Such procedures shall ensure that all voting members of the commission serve on a substantially equal number of panels in a random fashion, to the extent practicable.

Acts 1995, ch. 305, § 5; 2002, ch. 826, § 4; T.C.A. § 65-1-204; Acts 2012, ch. 1070, §§ 3-6; 2017, ch. 94, §§ 45-47.

Compiler's Notes. Acts 2002, ch. 826, § 7 provided that confirmations of appointments made or begun prior to July 1, 2002, remain in full force and effect, and appointments made pursuant to such confirmations shall remain valid appointments.

Amendments. The 2017 amendment substituted “commissioners” for “directors” throughout; substituted “Tennessee public utility commission” for “Tennessee Regulatory Authority” in the first sentence of (a);  and substituted “commission” for “authority” throughout.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 58.

Law Reviews.

An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339 (1947-1948).

Attorney General Opinions. Proposed amendment not within bill caption, OAG 99-073, 1999 Tenn. AG LEXIS 73 (3/23/99).

65-1-105. Compensation — Expenses.

1. The compensation of each commissioner of the Tennessee public utility commission shall be thirty-six thousand dollars ($36,000) per year payable monthly out of the state treasury on the warrant of the commissioner of finance and administration. When commissioners are assigned to serve on a panel lasting more than one (1) day, the commissioner shall be compensated one hundred forty dollars ($140) for each day, or portion of a day, following the first day, for the duration of the matter. Such compensation shall be in addition to reimbursement for actual travel expenses on official business under subsection (b).
2. The five (5) commissioners shall be reimbursed for their actual travel expenses on official business in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.

Acts 1995, ch. 305, § 5; 2002, ch. 826, § 5; T.C.A. § 65-1-205; Acts 2012, ch. 1070, § 7; 2017, ch. 94, §§ 45, 47.

Compiler's Notes. Acts 2002, ch. 826, § 7 provided that confirmations of appointments made or begun prior to July 1, 2002, remain in full force and effect, and appointments made pursuant to such confirmations shall remain valid appointments.

Amendments. The 2017 amendment, in (a),  substituted “each commissioner of the Tennessee public utility commission” for “each director of the Tennessee regulatory authority” in the first sentence, and substituted “When commissioners” for “When directors” and “the commissioner” for “the director” in the second sentence; and substituted “The five (5) commissioners” for “The five (5) directors” at the beginning of (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Collateral References.

Per diem compensation of railroad commissioners. 1 A.L.R. 296.

65-1-106. Travel reimbursement for employees subject to comprehensive travel regulations.

All employees of the Tennessee public utility commission shall be reimbursed for travel expenses in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-206; Acts 2017, ch. 94, § 45.

Amendments. The 2017 amendment substituted “the Tennessee public utility commission” for “the Tennessee regulatory authority”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-107. [Repealed.]

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-207; Acts 2017, ch. 94, §§ 45, 47; repealed by Acts 2019, ch. 98, § 1, effective March 28, 2019.

Compiler's Notes. Former § 65-1-107 concerned  prohibition of gifts.

65-1-108. Office — Furniture and supplies.

The Tennessee public utility commission shall be furnished a permanent office in Nashville, with all necessary furniture, stationery, and supplies, to be paid for by the state.

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-208; Acts 2017, ch. 94, § 45.

Amendments. The 2017 amendment substituted “The Tennessee public utility commission” for “The Tennessee regulatory authority” at the beginning.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-109. Executive director.

1. The executive director shall be appointed by joint agreement among the governor, the speaker of the senate and the speaker of the house of representatives for the initial term. Thereafter, the commissioners of the commission shall appoint the executive director. The term of the executive director shall be three (3) years. The executive director shall have at a minimum a bachelor's degree and either a minimum of five (5) years' experience in the regulated utility industry or a minimum of five (5) years' experience in executive-level management, with a preference toward experience in economics, law, finance, accounting or engineering. The executive director shall not be a commissioner of the commission.
2. The commission may remove the executive director by a majority vote of the commissioners.
3. The executive director shall have the principal responsibility of implementing the broad strategies, goals, objectives, long-range plans and policies of the commission. Among the executive director's duties, which are not limited to the following list, are:
   1. Serving as chief operating officer of the commission responsible for the day to day management of the commission and the supervision and hiring of all staff members within the limits of available funds authorized from time to time by the legislature;
   2. Administering, monitoring, and reviewing the operating procedures of each division of the commission, ensuring that each employee and division of the commission fully executes in an efficient and economical manner, the separate duties assigned to each;
   3. Submitting rules and policies for approval by the commission;
   4. Implementing and administering rules and policies for the efficient and economical internal management of the commission;
   5. Coordinating the preparation of the report to the general assembly as required by § 65-1-111;
   6. Supervising the expenditure of funds and being responsible for complying with all applicable state and federal law in the receipt and disbursement of funds; and
   7. Performing such other duties as the commission may require, from time to time, or as may be required by statute.
4. The governor shall set the compensation of the executive director for the initial term of office of the executive director, which shall not exceed the compensation established for the commissioners of the claims commission. Thereafter, the commissioners of the commission shall set the compensation of the executive director.
5. The executive director shall submit an annual report to the general assembly comparing telecommunications, electricity, natural gas, water and wastewater utility rates between Tennessee and the southeastern states. For the purpose of reporting rates in the report, the Tennessee public utility commission shall make comparisons on the basis of market choices made by consumers without regard to whether the services chosen are regulated or non-regulated services.

Acts 2012, ch. 1070, § 8; 2017, ch. 94, §§ 45, 46, 47, 80.

Compiler's Notes. Former § 65-1-109 (Acts 1995, ch. 305, § 5), concerning the duties of the executive secretary of the Tennessee regulatory authority, was repealed by Acts 2002, ch. 826, § 6, effective July 1, 2002.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section and substituted “Tennessee public utility commission” for “TRA” in the last sentence of (e).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-110. Minutes and official documents.

The minutes shall be signed by each member of the Tennessee public utility commission or by those present when any business is transacted. The minutes and all official documents of every kind shall be kept on file in the office of the commission.

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-210; Acts 2017, ch. 94, §§ 45, 46.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” in the middle and substituted “commission” for “authority” at the end.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-111. Report to general assembly.

1. The Tennessee public utility commission shall, on the first Monday of February each year, make a report to the general assembly and to the governor of all matters relating to its office for the preceding year, and such as will disclose the practical workings of companies under its jurisdiction in this state, along with such suggestions as it may deem proper, together with an abstract of the minutes of all of its meetings.
2. [Deleted by 2016 amendment.]

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-211; Acts 2012, ch. 1070, §§ 9, 10; 2016, ch. 797, § 18; 2017, ch. 94, § 45.

Amendments. The 2016 amendment deleted former (b) which read: “(b) The Tennessee regulatory authority shall prepare an annual report comparing, for the preceding fiscal year, the rates of municipal utilities, cooperatives, and utility districts providing water, gas or electricity to the rates of water, gas and electric utilities regulated by the authority. No later than October 1, 2012, and prior to October 1 of each subsequent year, the report shall be submitted to the governor, the speaker of the senate, the speaker of the house of representatives, and the members of the finance, ways and means committees of the senate and the house of representatives.”

The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” at the beginning of (a).

Effective Dates. Acts 2016, ch. 797, § 19. April 14, 2016.

Acts 2017, ch. 94, § 83. April 4, 2017.

Cross-References. Annual report, § 4-4-114.

Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

65-1-112. Copies of records.

For a copy of any record on file in its office, the Tennessee public utility commission shall charge and receive the same fees that are charged by the secretary of state for similar services, and shall convey into the state treasury any amount so received.

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-212; Acts 2017, ch. 94, § 45.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” near the middle of the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-113. Enforcement — Duties of authority.

It is the duty of the Tennessee public utility commission to ensure that Acts 1995, ch. 305 and all laws of this state over which they have jurisdiction are enforced and obeyed, that violations thereof are promptly prosecuted, and all penalties due the state are collected.

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-213; Acts 2017, ch. 94, § 45.

Compiler's Notes. Acts 1995, ch. 305, referred to in this section, enacted or amended numerous provisions throughout the code. See the Session Laws Disposition Table in Volume 13.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” near the beginning of the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-114. Former public service commission officers to retain service weapons.

A public service commission officer who is authorized to carry a firearm while on duty, and has more than twenty-five (25) years of honorable service, and leaves the service of the public service commission before retirement eligibility because of personnel actions executed under Acts 1995, ch. 305, may retain such employee's service weapon under § 65-15-106(c)(3).

Acts 1996, ch. 931, § 2; T.C.A. § 65-1-305.

Cross-References. Unlawful carrying or possession of a weapon, § 39-17-1307.

65-1-115. Members of former public service commission included in the executive service.

1. In addition to the designations of preferred and executive service employees in § 8-30-202, the following members of the former public service commission shall be included in the executive service:
   1. Members of the Tennessee public utility commission;
   2. The executive director of the Tennessee public utility commission;
   3. The personal staff of the members of the Tennessee public utility commission;
   4. The division commissioners and assistant division commissioners of the Tennessee public utility commission; and
   5. Any attorneys employed by the Tennessee public utility commission.
2. All actions of the department of human resources in regard to the Tennessee public utility commission personnel transactions may, upon request of a majority of the commission's commissioners, be reviewed and revised, modified or reversed by action of the house finance, ways and means committee and the senate finance, ways and means committee.

Acts 1995, ch. 305, § 51; T.C.A. § 65-1-303; Acts 2017, ch. 94, §§ 45-47.

Compiler's Notes. In light of the passage of Acts 2012, ch. 800, which rewrote the civil service provisions, “preferred and executive employees in § 8-30-202”  was substituted for “career and executive service employees in § 8-30-208” in the introductory paragraph.

The reference to the “department of personnel” was changed to the “department of human resources” pursuant to Acts 2007, ch. 60 § 3, effective April 24, 2007.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” five times in (a) and once in (b); substituted “commissioners” for “directors” twice in (a)(4); and substituted “commission's commissioners” for “authority's directors” near the middle of (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Cross-References. Retirement bonuses for commission employees, § 8-34-209.

65-1-116. Commissioners deemed state employees eligible for insurance benefits.

Tennessee public utility commission commissioners shall be deemed state employees as defined in § 8-27-201(g) [repealed and reenacted; see Compiler's Notes] and shall be eligible for participation in group insurance for state officials and employee plans as approved by the general assembly.

Acts 2012, ch. 1070, § 11; 2017, ch. 94, §§ 45, 47.

Compiler's Notes. Section 8-27-201 was repealed and reenacted by Acts 2015, ch. 426, effective May 18, 2015, and no longer defines “state employees.” See now § 8-27-204(a) for comparable provisions.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” at the beginning of the section and substituted “commissioners” for “directors” following “Tennessee public utility commission”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Part 2
Transitional Civil Service Provisions

NOTES TO DECISIONS

1. In General.

Rulemaking is the preferable way to formulate new policies, rules, or standards. Tennessee Cable Television Ass'n v. Tennessee Public Service Com., 844 S.W.2d 151, 1992 Tenn. App. LEXIS 583 (Tenn. Ct. App. 1992).

NOTES TO DECISIONS

1. In General.

The public service commission (now regulatory authority) is an administrative board and not a quasi-judicial body. McMinnville Freight Line, Inc. v. Atkins, 514 S.W.2d 725, 1974 Tenn. LEXIS 456 (Tenn. 1974).

NOTES TO DECISIONS

1. Construction.

Contested case proceedings involving certificates of authority for radio common carriers must be consistent not only with the State Radio Common Carrier Act, compiled in title 65, chapter 30, and the public service commission's (now Tennessee regulatory authority's) enabling statutes but also with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; while they may conduct contested case proceedings themselves, they may also appoint a hearing officer to hear all or any part of a particular case. Jackson Mobilphone Co. v. Tennessee Pub. Serv. Comm'n, 876 S.W.2d 106, 1993 Tenn. App. LEXIS 790 (Tenn. Ct. App. 1993), rehearing denied, 876 S.W.2d 106, 1994 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1994).

NOTES TO DECISIONS

1. Findings of Fact.

Tennessee Regulatory Authority made sufficient factual findings to facilitate the appellate court's review because it clarified that its rejection of the related costs stemmed from its decision to exclude the overall acquisition costs, and the reasons for such exclusion were explained in great detail in the Authority's earlier order setting rates. Pipeline, LLC v. Tenn. Regulatory Auth., — S.W.3d —, 2017 Tenn. App. LEXIS 733 (Tenn. Ct. App. Aug. 24, 2017).

NOTES TO DECISIONS

1. New Evidence.

Because a public utility failed to demonstrate good cause why new evidence could not have been presented, the Tennessee Regulatory Authority did not abuse its discretion by declining to consider it the additional evidence; the public utility had ample opportunity during the contested case hearing and for approximately sixty days thereafter to present any necessary evidence to meet its burden of proof, but it chose not to present additional evidence until after the Authority ruled. Pipeline, LLC v. Tenn. Regulatory Auth., — S.W.3d —, 2017 Tenn. App. LEXIS 733 (Tenn. Ct. App. Aug. 24, 2017).

65-3-101. All railways subject to chapter.

All railways are declared subject to this chapter, and all individuals, companies, corporations, trustees, receivers, and lessees, owning, operating, and managing such railways for the transportation of freight and passengers, are declared common carriers.

Acts 1897, ch. 10, § 14; Shan., § 3059a39; Code 1932, § 5415; T.C.A. (orig. ed.), § 65-301.

Compiler's Notes. Acts 1995, ch. 305, § 11 provided:

“In order to carry out its functions, duties and responsibilities maintained under the provisions of Acts 1995, ch. 305, the public service commission shall retain and have the authority to exercise any and all of its powers and duties existing under title 65 prior to enactment of Acts 1995, ch. 305, including, but not limited to, the power to subpoena, the power to take evidence, and the power to examine. Upon the termination of the public service commission, the Tennessee regulatory authority is expressly granted the same powers and duties as set forth above for the public service commission in order to carry out its responsibilities established by the provisions of Acts 1995, ch. 305.”

Acts 1995, ch. 305, § 44 provided:

“(a)  Notwithstanding any provision of law to the contrary, upon the effective date of this section [July 1, 1995] all employees of the public service commission charged with the responsibility of regulating and enforcing the provisions of Tennessee Code Annotated, Title 65, Chapter 3, and Chapter 5, Part 1 [repealed], and Chapters 11 and 12, and any other employees of the public service commission necessary to assist in such regulating and enforcing, shall be transferred to the department of transportation, created by Tennessee Code Annotated, Section 4-3-101. (b) All reports, documents, surveys, books, records, papers or other writings in the possession of the public service commission with respect to administering the provisions of Title 65, assigned to the department of transportation by this act, shall be transferred to and remain in custody of the department of transportation. (c) All leases, contracts and all contract rights and responsibilities in existence with the public service commission with respect to the duties transferred by this section shall be preserved and transferred to the department of transportation. (d) All assets, liabilities and obligations of the public service commission with respect to the duties transferred by this section shall become the assets, liabilities and obligations of the department of transportation. (e) Any revenues from rates, fares, charges, fines, and other moneys received pursuant to Tennessee Code Annotated, Title 65, Chapter 12, shall be allocated to the department of transportation as approved by the transition team pursuant to Section 48 [§ 65-1-301 (now § 65-1-201)] to implement the provisions of this act. (f) The commissioner of transportation shall promulgate rules and regulations pursuant to Title 4, Chapter 5, to effectuate the purposes of this act.”

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 12; 21 Tenn. Juris., Railroads, § 7.

Attorney General Opinions. Transfer of railroad authority to department of transportation, OAG 97-026, 1997 Tenn. AG LEXIS 25 (3/31/97).

65-3-102. Interstate commerce excepted.

This chapter and chapter 5 of this title shall be construed to apply to and affect only the transportation of passengers, freight cars and services to persons or between points within this state.

Acts 1897, ch. 10, § 30; Shan., § 3059a 67; mod. Code 1932, § 5443; T.C.A. (orig. ed.), § 65-302.

65-3-103. Uniform laws.

It is the duty of the department of transportation, by correspondence, conventions, or otherwise, to confer with such departments of other states and the interstate commerce commission, and such persons from states which have no railroad commission, as the governors of such states may appoint, for the purpose of agreeing, if practicable, upon a draft of statutes to be submitted to the legislature of each state, which shall secure uniform control of transportation in the several states, and from one (1) state into or through another state, as will best subserve the interest of trade and commerce of the whole country; and the department of transportation shall include in its annual report to the governor an abstract of the proceedings of any such conference or convention.

Acts 1897, ch. 10, § 29; Shan., § 3059a66; Code 1932, § 5442; T.C.A. (orig. ed.), § 65-303; Acts 1995, ch. 305, § 10.

65-3-104. Power to adopt rules and regulations.

The department of transportation has the power to make all needed rules for its government and for its proceedings, and regulate the mode of all investigations and hearings of railroad companies and other parties before it, and to adopt and enforce such rules and regulations and modes of procedure as it may deem proper for the hearing and determination of all complaints made by any railroad company or other parties; provided, that no person desiring to be present at any such investigation by the department of transportation shall be denied admission.

Acts 1897, ch. 10, § 8; 1907, ch. 390, § 2; Shan., § 3059a23; Code 1932, § 5399; T.C.A. (orig. ed.), § 65-304; Acts 1995, ch. 305, § 10.

Law Reviews.

An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339 (1947-1948).

65-3-105. Enforcement of regulations and orders.

The department of transportation is to perform all duties imposed upon it by this chapter and chapter 5 of this title, and see that such companies shall comply with all such regulations and orders as it may reasonably and lawfully make. If any such company fails or refuses to comply with such reasonable and lawful regulations and orders, it shall be the duty of the department of transportation to enforce the same. Power is given the department of transportation to enforce the same by mandamus or mandatory injunction, or by other summary proceedings provided by law. In all such proceedings, the orders, regulations, rates and tariffs made and fixed by the department of transportation pursuant to this chapter and chapter 5 of this title shall be taken and treated as prima facie reasonable and valid. It is made the duty of the courts having jurisdiction in such proceedings to hear and determine all such summary causes as speedily as practicable, giving preference or priority thereto as in revenue causes.

Acts 1897, ch. 10, § 32; 1915, ch. 92, § 1; Shan., § 3059a69; Acts 1921, ch. 70, § 2; mod. Code 1932, § 5445; T.C.A. (orig. ed.), § 65-305; Acts 1995, ch. 305, § 10.

Law Reviews.

An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339 (1947-1948).

Collateral References.

Constitutionality and construction of statute imposing upon public service corporation expense of investigation of its affairs. 101 A.L.R. 197.

Federal control as affecting right to enforce order. 4 A.L.R. 1680, 8 A.L.R. 969, 10 A.L.R. 956, 11 A.L.R. 1450, 14 A.L.R. 234, 19 A.L.R. 678, 52 A.L.R. 296.

Necessity of some evidence at hearing to support decision of commission. 123 A.L.R. 1349.

Railroad company as proper party to proceeding during federal control to compel trains to stop at certain city. 19 A.L.R. 678, 52 A.L.R. 296, 137 A.L.R. 504.

65-3-106. Information concerning company affairs.

1. The department of transportation shall inform itself fully and thoroughly in regard to the affairs of every company doing business in this state, and under its jurisdiction. It shall cause to be prepared suitable blanks with questions calculated to elicit all information concerning same, and, as often as may be necessary, furnish the blanks to each such company.
2. Each company receiving from the department of transportation any such blanks shall cause the same to be properly filled out, so as to answer fully and correctly each question therein propounded, and in case such company is unable to answer any question, it shall give a satisfactory reason for its failure, and the answer, duly sworn to by the proper officer of the company, shall be returned to the department of transportation at its office in Nashville within thirty (30) days from the receipt of same.

Acts 1897, ch. 10, § 8; Shan., §§ 3059a24, 3059a25; Code 1932, §§ 5400, 5401; T.C.A. (orig. ed.), §§ 65-306, 65-307; Acts 1995, ch. 305, § 10.

65-3-107. Company reports.

1. It is the duty of each and every company, corporation, or individual, owning, operating, or managing such a company in this state, to send to the department of transportation at its office in Nashville, the monthly, quarterly, and annual statements of the operations of such company or individual, if such reports are issued; if not, then such company or individual shall send such reports as may be issued at any special or regular time. The president or chief officer of each and every such company shall, on or before February 1 of each year, make and transmit to the department of transportation at its office in Nashville, under oath of the president or chief officer of the company, a full and true statement of the affairs of the company as the same existed on the preceding January 1, in accordance with the direction and schedules prepared and furnished by the department of transportation.
2. All common carriers shall send a copy of all safety inspection reports of such common carrier's tracks or track system which are prepared for or made by the federal railroad administration to the department of transportation. “Common carrier” is understood not to apply to private in-plant or intra-plant trackage owned or leased by private corporations which do not engage in serving the public as common carriers.
3. Any officer, agent, or employee failing or refusing to make, under oath, any report required by the department of transportation, within the time required, or failing or refusing to answer fully under oath, if required, any inquiry propounded by the department of transportation, or who shall, in any way, hinder or obstruct the department of transportation, in the discharge of its duties, commits a Class C misdemeanor.

Acts 1897, ch. 10, §§ 12, 13; Shan., §§ 3059a37, 3059a38; Code 1932, §§ 5413, 5414; Acts 1979, ch. 423, § 1; T.C.A. (orig. ed.), §§ 65-308, 65-309; Acts 1989, ch. 591, § 113; 1995, ch. 305, § 10.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

65-3-108. Powers of department of transportation to examine.

The department of transportation is given full power to examine the books and papers of the companies, and to examine, under oath, the officers, agents, and employees of the companies and any other persons, to procure the necessary information to intelligently and justly discharge its duties and carry out the provisions of this chapter and chapter 5 of this title.

Acts 1897, ch. 10, § 8; Shan., § 3059a26; Code 1932, § 5402; T.C.A. (orig. ed.), § 65-310; Acts 1995, ch. 305, § 10.

65-3-109. Confidential information.

The department of transportation shall not give publicity to any contracts, leases, or engagements obtained by it in its official capacity, if the interests of any company would thereby be injuriously affected, unless, in the judgment of the department of transportation, the public interest requires it.

Acts 1897, ch. 10, § 11; Shan., § 3059a36; Code 1932, § 5412; T.C.A. (orig. ed.), § 65-311; Acts 1995, ch. 305, § 10.

Cross-References. Confidentiality of public records, § 10-7-504.

65-3-110. Power of department of transportation to take evidence.

The department of transportation has the power to examine, under oath, any person, or the directors, officers, agents, and employees of any such corporation doing business in this state, concerning the management of its affairs, and to obtain information pursuant to this chapter and chapter 5 of this title, and has the power to issue subpoenas for the attendance of witnesses, to compel the production of books and papers, and to administer oaths.

Acts 1897, ch. 10, § 9; Shan., § 3059a27; Code 1932, § 5403; T.C.A. (orig. ed.), § 65-312; Acts 1995, ch. 305, § 10.

65-3-111. Refusal to obey process or testify — Penalty.

Any person who neglects or refuses to obey the process of subpoenas issued by the department of transportation or who, being in attendance, refuses to testify commits a Class C misdemeanor. Each refusal to obey the subpoena or to testify is a separate offense.

Acts 1897, ch. 10, § 9; Shan., § 3059a28; Code 1932, § 5404; T.C.A. (orig. ed.), § 65-313; Acts 1989, ch. 591, § 113; 1995, ch. 305, § 10.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

65-3-112. Power to issue subpoenas.

The department of transportation, in making any examination or investigation provided for, has the power to issue subpoenas for the attendance of witnesses by such rules as it may prescribe.

Acts 1897, ch. 10, § 10; Shan., § 3059a29; Code 1932, § 5405; T.C.A. (orig. ed.), § 65-314; Acts 1995, ch. 305, § 10.

Law Reviews.

An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339 (1947-1948).

65-3-113. Compensation of witnesses.

Each witness who appears before the department of transportation, by order of the department of transportation, shall receive for attendance the compensation provided by law, which shall be paid by the state treasurer on warrant of the commissioner of finance and administration, upon the presentation of proper voucher sworn to by such witness, and approved by the commissioner of transportation; provided, that no witness shall be entitled to any witness fees or mileage who is directly or indirectly interested in any such company in this state or out of it, or who is in any way interested in any stock, bond, mortgage, security, or earnings of any such company, or who shall be the agent or employee of such company, or an officer thereof when summoned at the instance of such company. No witness furnished with free transportation shall receive compensation for the distance traveled on such free transportation.

Acts 1897, ch. 10, § 10; Shan., § 3059a30; Code 1932, § 5406; impl. am. Acts 1937, ch. 33, §§ 24, 29; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 65-315; Acts 1995, ch. 305, § 10.

65-3-114. Witness failing to obey subpoena.

In case any witness fails or refuses to obey a subpoena, the department of transportation may issue an attachment for such witness, directed to any sheriff or constable of the state, and compel the witness to attend before the department of transportation and give testimony upon such matters as shall be lawfully required by it.

Acts 1897, ch. 10, § 10; Shan., § 3059a31; Code 1932, § 5407; T.C.A. (orig. ed.), § 65-316; Acts 1995, ch. 305, § 10.

65-3-115. Witness failing to attend or answer questions.

If a witness, after being duly summoned, fails or refuses to attend, or to answer any question propounded to such witness, which such witness would be required to answer if in court, the department of transportation shall have power to fine and imprison such witness for contempt in the same manner that the judge of any court of competent jurisdiction might do under similar circumstances.

Acts 1897, ch. 10, § 10; Shan., § 3059a32; Code 1932, § 5408; T.C.A. (orig. ed.), § 65-317; Acts 1995, ch. 305, § 10.

Code Commission Notes.

Although Acts 1989, ch. 591, § 113 indicated that the penalty provisions in this section should be rewritten to indicate that a violation of this section is a Class C misdemeanor, the code commission has decided that this section should not be rewritten to reflect Acts 1989, ch. 591, § 113.

Cross-References. Punishment for contempt, § 29-9-103, Tenn. R. Crim. P. 42.

Law Reviews.

An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339 (1947-1948).

65-3-116. Officers or employees testifying exempt from indictment.

No officer, agent, servant, or employee of any such company, who appears and testifies before the department of transportation under this chapter or chapter 5 of this title or in any civil or criminal proceedings instituted by the department of transportation under this chapter or chapter 5 of this title, shall be liable to indictment or presentment for any violation of this chapter or chapter 5 of this title about which such person so testifies.

Acts 1897, ch. 10, § 10; Shan., § 3059a33; Code 1932, § 5409; T.C.A. (orig. ed.), § 65-318; Acts 1995, ch. 305, § 10.

65-3-117. Depositions.

The department of transportation shall, in all cases, have a right in its discretion to issue proper process and take depositions instead of compelling personal attendance of witnesses.

Acts 1897, ch. 10, § 10; Shan., § 3059a34; Code 1932, § 5410; T.C.A. (orig. ed.), § 65-319; Acts 1995, ch. 305, § 10.

65-3-118. Fees of sheriff or constable executing process.

The sheriff or constable executing any process issued under this chapter and chapter 5 of this title shall receive such compensation as may be allowed by the department of transportation, not to exceed the fees prescribed by law for similar services.

Acts 1897, ch. 10, § 10; Shan., § 3059a35; Code 1932, § 5411; T.C.A. (orig. ed.), § 65-320; Acts 1995, ch. 305, § 10.

65-3-119. Penalties generally.

1. It is the duty of the district attorneys general to bring suit in the name of the state on the relation of the department of transportation, in any court having jurisdiction thereof, to recover any penalty imposed by this chapter and chapter 5 of this title.
2. If any company, corporation or lessee knowingly violates this chapter or chapter 5 of this title, or does any act prohibited therein, or fails or refuses to perform any duty required by the department of transportation pursuant to this chapter or chapter 5 of this title for which a penalty has not therein been provided, for each and every such act of violation it shall pay to the state of Tennessee a penalty of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000).
3. All penalties provided for in this chapter or chapter 5 of this title shall be recovered, and suit thereon shall be brought, in the name of the state of Tennessee.
4. All penalties and fines recovered shall be paid into the state treasury.

Acts 1897, ch. 10, §§ 20, 25, 26; Shan., §§ 3059a46, 3059a55, 3059a59, 3059a60; Code 1932, §§ 5422, 5431, 5435, 5436; modified; Acts 1980, ch. 760, § 1; T.C.A. (orig. ed.), §§ 65-321 — 65-324; Acts 1991, ch. 138, § 2; 1995, ch. 305, § 10.

Cross-References. District attorneys general to prosecute all suits, § 65-3-120.

65-3-120. Civil and criminal suits.

1. The circuit, chancery courts and courts of general sessions have jurisdiction of all suits of a civil nature arising under this chapter and chapter 5 of this title, according to the nature of the suit and the amount involved, and the circuit and criminal courts have jurisdiction of all criminal proceedings so arising.
2. The district attorney general of the judicial district in which the suit is to be instituted shall prosecute suits so brought in the name of the state.
3. The department of transportation shall report all such violations with the facts in its possession to such district attorney general and request the district attorney general to institute the proper proceedings.
4. All suits between the state and any such company shall have precedence in all courts over all other suits pending therein, and the judges of the courts are directed to advance such suits on their dockets.

Acts 1897, ch. 10, §§ 26, 27; Shan., §§ 3059a56, 3059a61, 3059a63, 3059a64; Code 1932, §§ 5432, 5437, 5439, 5440; impl. am. Acts 1979, ch. 68, § 3; modified; T.C.A. (orig. ed.), §§ 65-325 — 65-328; Acts 1995, ch. 305, § 10.

Cross-References. Suits for penalties, § 65-3-119.

65-3-121. Indictments — Prosecutor.

1. Indictments or presentments under this chapter and chapter 5 of this title shall be only upon recommendation or request of the department of transportation, filed in the court having jurisdiction of the offense.
2. The department of transportation or any member thereof, or any person authorized by law to prosecute criminal cases, may be prosecutor.

Acts 1897, ch. 10, § 26; Shan., § 3059a57; Code 1932, § 5433; T.C.A. (orig. ed.), § 65-329; Acts 1995, ch. 305, § 10.

65-3-122. Limitation of actions.

All prosecutions or actions under this chapter and chapter 5 of this title shall be commenced within one (1) year after the offense has been committed or the cause of action has accrued, or the same shall be barred.

Acts 1897, ch. 10, § 26; Shan., § 3059a58; Code 1932, § 5434; T.C.A. (orig. ed.), § 65-330; Acts 1995, ch. 305, § 10.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 49.

65-3-123. Abatement of dangerous or unhealthy conditions.

1. The department of transportation has the power and authority relative to commercial railroads, interurban railroads, and street railroads to inspect the conditions existing on all trains operating in Tennessee, along the rail rights-of-way, in rail yards and terminals, and at rail loading and unloading facilities connected to property owned or operated by the railroads, except for those areas of loading and unloading facilities requiring no access for service by Class I railroads. This power and authority is in addition to those granted in § 65-11-107. Such inspection shall be conducted for the purpose of assuring the safety, health and comfort of rail customers, the general public and rail employees, and for the purpose of abating and removing any dangerous or unhealthy conditions found to exist in these locations.
2. The department of transportation, on its own motion or on the petition of any citizen, shall have a hearing on the question embraced within this section, as to the presence of dangerous or unhealthy conditions of trains or along the rights-of-way, yards and terminals of all commercial railroads and street railroads.
3. It is the duty of the department of transportation, after the hearing, to order the abatement and removal of any dangerous or unhealthy condition, if found to exist, and to order improvements to be made remedying same, when such conditions are shown to be dangerous to the health and safety of the general public or the employees.

Acts 1939, ch. 130, § 1; C. Supp. 1950, § 5449; impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-331; Acts 1991, ch. 138, § 1; 1995, ch. 305, §§ 10, 12.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4; 21 Tenn. Juris., Public Service Commissions, § 4.

Law Reviews.

The Indeterminate Permit for Public Utilities in Tennessee (Henry B. Witham), 6 Tenn. L. Rev. 1 (1927).

Part 2
Inspection, Control, and Supervision Fee

65-4-101. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

1. “Competing telecommunications service provider” means any individual or entity that offers or provides any two-way communications service, telephone service, telegraph service, paging service, or communications service similar to such services and is certificated as a provider of such services after June 6, 1995, unless otherwise exempted from this definition by state or federal law;
2. “Current authorized fair rate of return” means:
   1. For an incumbent local exchange telephone company operating pursuant to a regulatory reform plan ordered by the former public service commission under TPSC rule 1220-4-2-.55, any return within the range contemplated by TPSC rule 1220-4-2-.55(1)(c)(1) or TPSC rule 1220-4-2-.55(d);
   2. For any other incumbent local exchange telephone company, the rate of return on rate base most recently used by the former public service commission in an order evaluating its rates;
3. “Gross domestic product-price index (GDP-PI)” used to determine limits on rate changes means the final estimate of the chain-weighted gross domestic product-price index as prepared by the United States department of commerce and published in the Survey of Current Business, or its successor;
4. “Incumbent local exchange telephone company” means a public utility offering and providing basic local exchange telephone service as defined by § 65-5-108(a) pursuant to tariffs approved by the former public service commission prior to June 6, 1995;
5. “Interconnection services” means telecommunications services, including intrastate switched access service, that allow a telecommunications service provider to interconnect with the networks of all other telecommunications service providers;
6. 1. “Public utility” means every individual, copartnership, association, corporation, or joint stock company, its lessees, trustees, or receivers, appointed by any court whatsoever, that own, operate, manage or control, within the state, any interurban electric railway, traction company, all other common carriers, express, gas, electric light, heat, power, water, telephone, telegraph, telecommunications services, or any other like system, plant or equipment, affected by and dedicated to the public use, under privileges, franchises, licenses, or agreements, granted by the state or by any political subdivision thereof. “Public utility” as defined in this section shall not be construed to include the following nonutilities:
      1. Any corporation owned by or any agency or instrumentality of the United States;
      2. Any county, municipal corporation or other subdivision of the state of Tennessee;
      3. Any corporation owned by or any agency or instrumentality of the state;
      4. Any corporation or joint stock company more than fifty percent (50%) of the voting stock or shares of which is owned by the United States, the state of Tennessee or by any nonutility referred to in subdivisions (a)(1), (2), and (3);
      5. Any cooperative organization not organized or doing business for profit, cooperative association not organized or doing business for profit, or cooperative corporation not organized or doing business for profit.  For purposes of this subdivision (6)(A)(v), “cooperative” shall mean only those nonprofit cooperative entities organized under or otherwise subject to the Rural Electric and Community Services Cooperative Act, compiled in chapter 25, part 2 of this title, or the Telephone Cooperative Act, compiled in chapter 29 of this title.
      6. Any individual, partnership, copartnership, association, corporation or joint stock company offering domestic public cellular radio telephone service authorized by the federal communications commission; provided, that the real and personal property of such domestic public cellular radio telephone entities shall be assessed by the comptroller of the treasury pursuant to §§ 67-5-801(a)(1), 67-5-901(a)(1), and § 67-5-1301(a)(2); provided, however, that until at least two (2) entities, each independent of the other, are authorized by the federal communications commission to offer domestic public cellular radio telephone service in the same cellular geographical area within the state, the customer rates only of a company offering domestic public cellular radio telephone service shall be subject to review by the Tennessee public utility commission pursuant to §§ 65-5-101 — 65-5-104. Upon existence in a cellular geographical area of the conditions set forth in the preceding sentence, domestic public cellular radio telephone service in such area, for all purposes, shall automatically cease to be treated as a public utility under this title. The Tennessee public utility commission's authority over domestic public cellular radio telephone service is expressly limited to the above extent and the commission shall have no authority over resellers of domestic public cellular radio telephone service. For the purpose of this subdivision (6)(A)(vi), “authorized” means six (6) months after granting of the construction permit by the federal communications commission to the second entity or when the second entity begins offering service in the same cellular geographical area, whichever should first occur. This subdivision (6)(A)(vi) does not affect, modify or lessen the utility commission's authority over public utilities that are subject to regulation pursuant to chapter 5 of this title;
      7. Any county, municipal corporation or other subdivision of a state bordering Tennessee, but only to the extent that such county, municipal corporation or other subdivision distributes natural gas to retail customers within the municipal boundaries and/or urban growth boundaries of a Tennessee city or town adjoining such bordering state;
      8. Any of the foregoing nonutilities acting jointly or in combination or through a joint agency or instrumentality; and
      9. For purposes of §§ 65-5-101 and 65-5-103, “public utility” shall not include interexchange carriers. “Interexchange carriers” means companies, other than incumbent local exchange telephone companies, owning facilities in the state which consist of network elements and switches, or other communication transmission equipment used to carry voice, data, image, and video traffic across the local access and transport area (LATA) boundaries within Tennessee;
   2. 1. “Public utility” does not mean nonprofit homeowners associations or organizations whose membership is limited to owners of lots in residential subdivisions, which associations or organizations own, construct, operate or maintain water, street light or park maintenance service systems for the exclusive use of that subdivision; provided, however, that the subdivisions are unable to obtain such services from the local utility district. None of the property, property rights or facilities owned or used by the association or organization for the rendering of such services shall be under the jurisdiction, supervision or control of the Tennessee public utility commission;
      2. “Public utility” does not mean any nonprofit corporation, as defined in § 501(c)(4) of the Internal Revenue Code (26 U.S.C. § 501(c)(4)), which owns and operates a wastewater system primarily for the use of the members of the corporation and which has received a written statement of exemption from regulation as a public utility from the Tennessee public utility commission prior to January 1, 2009;
   3. “Public utility” includes a wind energy facility, as defined in § 65-17-101, and does not include a wind energy facility subject to § 65-17-102; and
7. “Telecommunications service provider” means any incumbent local exchange telephone company or certificated individual or entity, or individual or entity operating pursuant to the approval by the former public service commission of a franchise within § 65-4-207(b), authorized by law to provide, and offering or providing for hire, any telecommunications service, telephone service, telegraph service, paging service, or communications service similar to such services unless otherwise exempted from this definition by state or federal law.

Acts 1919, ch. 49, § 3; Shan. Supp., § 3059a86; Code 1932, § 5448; Acts 1935, ch. 42, § 1; 1943, ch. 51, § 1; C. Supp. 1950, § 5448; Acts 1979, ch. 195, § 1; T.C.A. (orig. ed.), § 65-401; Acts 1984, ch. 869, § 1; 1995, ch. 305, §§ 14, 20; 1995, ch. 408, §§ 2, 3; 1999, ch. 317, § 1; 2001, ch. 27, § 1; 2011, ch. 430, §§ 1, 2; 2017, ch. 94, § 51; 2018, ch. 825, § 2.

Code Commission Notes.

Subdivision designations for the definitions of “public utility” and “telecommunications service provider” in § 65-4-101 were amended by the code commission in 2011. Subdivision (6) was redesignated as subdivision (6)(A); former subdivisions (6)(A)-(I), as present subdivisions (6)(A)(i)-(ix), respectively; former subdivision (7), as (6)(B); and the definition of “telecommunications service provider” as subdivision (7).

Amendments. The 2017 amendment, in the definition of “public utility”, substituted “Tennessee public utility commission” for “Tennessee regulatory authority” throughout (A)(vi) and in (B)(i); and, in (A)(vi), substituted “The Tennessee public utility commission's authority” for “The Tennessee regulatory authority's authority” at the beginning and substituted “the commission” for “the authority” near the end of the next to last sentence, and substituted “the utility commission's authority” for “the regulatory authority's authority” in the last sentence.

The 2018 amendment added (C) in the definition of “public utility”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Acts 2018, ch. 825, § 20. April 24, 2018.

Cross-References. Municipal gas companies exempt from regulation, § 7-39-311.

Municipal utilities exempt from regulation, §§ 7-34-106, 7-34-117.

Regulation of rates by regulatory authority, title 65, ch. 5.

Utilities district, exemption, § 7-82-104.

Utility location, title 13, ch. 24, part 3.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Electricity, § 2; 13 Tenn. Juris., Gas Companies, §§ 3, 4; 21 Tenn. Juris., Public Service Commissions, §§ 2, 3; 25 Tenn. Juris., Water Companies and Waterworks, § 2.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

The Indeterminate Permit for Public Utilities in Tennessee (Henry B. Witham), 6 Tenn. L. Rev. 1 (1927).

Attorney General Opinions. Authority's power to regulate debt issuance by public utilities engaged in interstate commerce, OAG 99-119, 1999 Tenn. AG LEXIS 119 (5/14/99).

Any proposed classification of political promotional speech as telemarketing or telephone solicitation through redefinition of those terms, within the current consumer protection regulatory scheme, would be constitutionally suspect, OAG 03-011, 2003 Tenn. AG LEXIS 12 (1/24/03).

A telecommunications provider that has been granted a certificate of public convenience and necessity by the Tennessee Regulatory Authority to provide competing access services and transport telecommunications services in Tennessee is entitled to exercise right-of-way and eminent domain powers under Tennessee law. OAG 15-16, 2015 Tenn. AG LEXIS 15 (3/3/2015).

A solar electricity generating facility that comes within the statutory definition of “public electric system” is prohibited from selling power in certain geographical territories.  Whether its property is “affected by and dedicated to public use” will depend on a variety of factors, specific to each case.  The fact that it provides power “directly and exclusively to owners and/or tenants located on the same or adjacent premises” is just one of many factors to be considered but is not alone determinative of whether or not its property is affected by and dedicated to public use.   If the owner of a solar electricity generating facility is a public electric system as defined in T.C.A. § 65-34-102(5), it would likewise be a public utility as defined in T.C.A. § 65-4-101(6)(A) unless it were to come within one of the many statutory exceptions detailed in T.C.A. § 65-4-101(6)(A)(i) through (B)(ii).  OAG 17-25, 2017 Tenn. AG LEXIS 24 (4/10/2017).

65-4-102. Railroads excluded.

None of the provisions of this chapter and none of the powers conferred upon the commission shall apply to any railroad, whether operated by an incorporated company or individual, which is operated in this state and which is regulated and governed by chapter 3 of this title.

Acts 1919, ch. 49, § 3; Shan. Supp., § 3059a86; mod. Code 1932, § 5449; Acts 1939, ch. 130, § 1; C. Supp. 1950, § 5449; modified; T.C.A. (orig. ed.), § 65-402; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “the commission” for “the authority”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4.

65-4-103. Interstate commerce excepted.

This chapter shall be construed to apply to and affect only public utilities which furnish products or services within the state, and this chapter shall not be construed to extend to any public utility engaged in interstate commerce the government or regulation of which jurisdiction is vested in the interstate commerce commission or other federal board or commission.

Acts 1919, ch. 49, § 10; Shan. Supp., § 3059a93; Code 1932, § 5456; T.C.A. (orig. ed.), § 65-403.

Attorney General Opinions. Authority's power to regulate debt issuance by public utilities engaged in interstate commerce, OAG 99-119, 1999 Tenn. AG LEXIS 119 (5/14/99).

65-4-104. Commission's jurisdiction and control of public utilities.

1. The commission has general supervisory and regulatory power, jurisdiction, and control over all public utilities, and also over their property, property rights, facilities, and franchises, so far as may be necessary for the purpose of carrying out the provisions of this chapter. However, such general supervisory and regulatory power and jurisdiction and control shall not apply to street railway companies.
2. 1. Any investor-owned electric power company serving Tennessee customers on the western side of the Mississippi River shall provide those Tennessee customers with the same level of service and charge the same rates as the power company provides and charges similarly situated customers in Arkansas.
   2. Upon a finding that an investor-owned electric power provider has engaged in unjust or unreasonable discrimination in service or rates in violation of subdivision (b)(1), the commission may order changes in the provider's services or rates to those Tennessee customers as necessary to enforce subdivision (b)(1).
   3. The commission's jurisdiction over an investor-owned electric power company serving Tennessee customers on the western side of the Mississippi River is limited to hearing a complaint alleging a violation of subdivision (b)(1) and granting appropriate relief as provided in subdivision (b)(2).
   4. Nothing in this subsection (b) removes the duty of any investor-owned electric power company to pay any required inspection and supervision fee to the commission as required by part 3 of this chapter.
   5. Nothing in this subsection (b) removes the duty of any investor-owned electric power company to pay its otherwise appropriate Tennessee state or local taxes.

Acts 1919, ch. 49, § 3; Shan. Supp., § 3059a85; Code 1932, § 5447; Acts 1943, ch. 51, § 1; C. Supp. 1950, § 5447; impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-404; Acts 1995, ch. 305, § 20;  2017, ch. 94, § 51; 2017, ch. 98, § 1.

Compiler's Notes. For the Preamble to the act concerning rates of investor-owned utility companies, please refer to Acts 2017, ch. 98.

Amendments. The 2017 amendment by ch. 94 substituted “The commission” for “The authority” at the beginning of (a).

The 2017 amendment by ch. 98 added (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Acts 2017, ch. 98, § 2. July 1, 2017.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Electricity, § 2; 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4; 21 Tenn. Juris., Public Service Commissions § 5.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

65-4-105. Extent of regulatory power of commission.

1. In addition to the power conferred by this chapter on the commission, it shall possess with reference to all public utilities within its jurisdiction all the other powers conferred with reference to railroads regulated by the department of transportation or transportation companies regulated by the department of safety as provided by chapters 3 and 5 of this title.
2. Where any existing contract between any public utility and any municipality specifies that particular things, other than charging certain rates, tolls or fares, shall continue to be done by such public utility, or the nature, kind, and quality of any particular service to be rendered by the public utility to the municipality or its people, nothing in this section nor in this title shall be construed to authorize the commission to excuse such public utility from continuing to do such specified things or from continuing to render and perform the service of at least the nature, kind and quality specified in any such existing contract; but, all these things involving the cost of the service shall be taken into consideration by the commission in exercising its power to pass upon the reasonableness of any rate, fare, or charge hereafter to be made by such public utility.
3. No provision of this section or of this title shall be construed to alter or impair any existing contract between any public utility and any municipality whereby it has been agreed that any payments of money, in addition to proper ad valorem taxes, shall be made by any such public utility to or for the benefit of any such municipality or its people, but all such things, involving the cost of the service, shall be taken into consideration by the commission in exercising its power to pass upon the reasonableness of any rate, fare or charge hereafter to be made by such public utility.
4. When any public utility regulated by the commission supplies its services to consumers who use solar or wind-powered equipment as a source of energy, such public utility shall not discriminate against such consumers by its rates, fees or charges or by altering the availability or quality of energy. Any consumer who uses solar, wind power, or other auxiliary source of energy shall install and operate the equipment, property, or appliance for such energy source in compliance with any state or local code or regulation applicable to the safe operation of such equipment, property, or appliance.
5. Any franchise payment or other payment for the use of public streets, alleys or other public places or any license, privilege, occupation or excise tax payment, which after February 24, 1961, may be made by a utility to a municipality or other political subdivision, except such taxes as are presently provided for under existing statutes and except such franchise payment or other payments as are presently exacted from the utility pursuant to the terms of any existing franchise or other agreement, shall, insofar as practicable, be billed pro rata to the utility customers receiving local service within the municipality or political subdivision receiving such payments, and shall not otherwise be considered by the commission in fixing the rates and charges of the utility.
6. The commission shall further have jurisdiction over all utility districts created pursuant to Tennessee law, to the extent that the exercise of such jurisdiction is provided by title 7, chapter 82 and Acts 1951, ch. 51 as provided in this chapter or as amended.

Acts 1919, ch. 49, § 11; Shan. Supp., § 3059a94; Code 1932, § 5457; Acts 1961, ch. 123, § 1; 1973, ch. 249, § 2; 1980, ch. 756, § 2; T.C.A. (orig. ed.), § 65-405; Acts 1995, ch. 305, §§ 15, 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Cross-References. Avoiding rate discrimination against solar or wind power users, § 65-5-104.

Municipal public works, discrimination against consumers using auxiliary energy sources, § 7-34-114.

Law Reviews.

Local Government Law — 1961 Tennessee Survey (Eugene Puett), 14 Vand. L. Rev. 1335 (1961).

65-4-106. Construction of chapter.

This chapter shall not be construed as being in derogation of the common law, but shall be given a liberal construction, and any doubt as to the existence or extent of a power conferred on the commission by this chapter or chapters 1, 3 and 5 of this title shall be resolved in favor of the existence of the power, to the end that the commission may effectively govern and control the public utilities placed under its jurisdiction by this chapter.

Acts 1919, ch. 49, § 12; Shan. Supp., § 3059a95; Code 1932, § 5458; T.C.A. (orig. ed.), § 65-406; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “the commission” for “the authority” throughout.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-107. Approval of privilege or franchise.

1. No privilege or franchise hereafter granted to any public utility by the state or by any political subdivision of the state shall be valid until approved by the commission, such approval to be given when, after hearing, the commission determines that such privilege or franchise is necessary and proper for the public convenience and properly conserves the public interest, and the commission shall have power, if it so approves, to impose such conditions as to construction, equipment, maintenance, service or operation as the public convenience and interest may reasonably require; provided, however, that nothing contained in this chapter shall be construed as applying to the laying of sidings, sidetracks, or switchouts, by any public utility, and it shall not be necessary for any such public utility to obtain a certificate of convenience from the commission for such purpose.
2. All terms, conditions, obligations, and rights of a privilege or franchise approved by the commission for the provision of natural gas service shall remain in effect until approval of a subsequent privilege or franchise by the commission.

Acts 1919, ch. 49, § 7; Shan. Supp., § 3059a90; Code 1932, § 5453; T.C.A. (orig. ed.), § 65-407; Acts 1995, ch. 305, § 20; 2016, ch. 645, § 1; 2017, ch. 94, § 51.

Amendments. The 2016 amendment added (b).

The 2017 amendment substituted “the commission” for “the authority” throughout.

Effective Dates. Acts 2016, ch. 645, § 4. March 23, 2016.

Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Public Service Commissions, § 3.

Law Reviews.

Social Performance of Public Utilities: Effects of Monopoly and Competition, 17 Tenn. L. Rev. 308 (1942).

The Indeterminate Permit for Public Utilities in Tennessee (Henry B. Witham), 6 Tenn. L. Rev. 1 (1927).

65-4-108. Appeal to commission from local regulation.

Any such public utility may appeal to the commission from any order or regulation made by any local, municipal, or county governing body, and the commission is given power and jurisdiction to hear such appeal and to determine the matter in question on the merits and make such order in the premises as may be just and reasonable.

Acts 1919, ch. 49, § 8; Shan. Supp., § 3059a91; Code 1932, § 5454; T.C.A. (orig. ed.), § 65-408; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “the commission” for “the authority” twice.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Public Service Commissions, § 3; 25 Tenn. Juris., Water Companies and Waterworks, § 3.

65-4-109. Issuance of stocks or other evidences of indebtedness.

No public utility shall issue any stocks, stock certificates, bonds, debentures, or other evidences of indebtedness payable in more than one (1) year from the date thereof, until it shall have first obtained authority from the commission for such proposed issue. It shall be the duty of the commission after hearing to approve any such proposed issue maturing more than one (1) year from the date thereof upon being satisfied that the proposed issue, sale and delivery is to be made in accordance with law and the purpose of such be approved by the commission.

Acts 1919, ch. 49, § 6; Shan. Supp., § 3059a89; Code 1932, § 5452; T.C.A. (orig. ed.), § 65-409; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Gas Companies, § 7; 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4.

Attorney General Opinions. Authority's power to regulate debt issuance by public utilities engaged in interstate commerce, OAG 99-119; 1999 Tenn. AG LEXIS 119 (5/14/99).

Collateral References.

Bond discount, control over issue of securities to capitalize on fund. 72 A.L.R. 1232.

Regulating issuance of securities by public utilities through public service commission. 41 A.L.R. 889.

Street railway companies, public service commission's power as to fiscal management of, and issuance of bonds by. 5 A.L.R. 66, 39 A.L.R. 1517.

65-4-110. Depreciation account for protection of holders of securities.

The commission has the power, after hearing, upon notice, by order in writing, to require every public utility as defined in § 65-4-101 to carry for the protection of stockholders, bondholders or holders of securities a proper and adequate depreciation account in accordance with such rules, regulations, and forms of account, as the commission may prescribe. The commission shall have power to ascertain and determine, and by order in writing, after hearing, fix proper and adequate rates of depreciation of the property of each public utility, and each public utility shall conform its depreciation accounts to the rates so ascertained, determined, and fixed, and shall set aside the moneys so provided for out of earnings and carry the same in a depreciation fund. The income from investments of moneys in such fund shall likewise be carried in such fund. This depreciation fund shall not be expended otherwise than for depreciation, improvements, new constructions, extensions, or additions to the property of such public utility, unless the commission shall by order in writing give permission to the public utility to divert the fund to purposes other than those named in this section.

Acts 1919, ch. 49, § 5; Shan. Supp., § 3059a88; mod. Code 1932, § 5451; T.C.A. (orig. ed.), § 65-410; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “The commission” for “The authority” and “the commission” for “the authority” throughout.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Collateral References.

Natural resources, allowance for depletion in respect of, in fixing rates. 91 A.L.R. 1413.

65-4-111. Uniform system of accounting — Reports.

1. The commission has the power, after hearing, upon notice, by order in writing, to require every public utility as defined in § 65-4-101 to keep its books, records, and accounts so as to afford an intelligent understanding of the conduct of its business, and to that end to require every such public utility of the same class to adopt a uniform system of accounting. The accounting system shall conform, where applicable, to any system adopted or approved by the interstate commerce commission.
2. The commission also has the power to require each such utility to furnish annually, or at such other times as the commission may require, a detailed report of finances and operations as shown by such system of accounts.

Acts 1919, ch. 49, § 5; Shan. Supp., § 3059a88; Code 1932, § 5451; T.C.A. (orig. ed.), § 65-411; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “The commission” for “The authority” at the beginning of the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-112. Utilities leasing, merging, or consolidating property.

1. No lease of its property, rights, or franchises, by any such public utility, and no merger or consolidation of its property, rights and franchises by any such public utility with the property, rights and franchises of any other such public utility of like character shall be valid until approved by the commission, even though power to take such action has been conferred on such public utility by the state or by any political subdivision of the state.
2. Any public utility as defined in § 65-4-101, may, without the approval or consent of the state or the commission, or any other agency of the state, sell, lease, or otherwise dispose of any of its property, including, but without limitation, franchises, rights, facilities, and other assets, and its capital stock, to any of the nonutilities defined in § 65-4-101.

Acts 1919, ch. 49, § 6; Shan. Supp., § 3059a89; Code 1932, § 5452; Acts 1935, ch. 42, § 2; C. Supp. 1950, § 5448.1; impl. am. Acts 1955, ch. 69, § 1; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “the commission” for “the authority” in (a) and (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4; 21 Tenn. Juris., Public Service Commissions, § 3.

65-4-113. Transfer of authority to provide utility services.

1. No public utility, as defined in § 65-4-101, shall transfer all or any part of its authority to provide utility services, derived from its certificate of public convenience and necessity issued by the commission, to any individual, partnership, corporation or other entity without first obtaining the approval of the commission.
2. Upon petition for approval of the transfer of authority to provide utility services, the commission shall take into consideration all relevant factors, including, but not limited to, the suitability, the financial responsibility, and capability of the proposed transferee to perform efficiently the utility services to be transferred and the benefit to the consuming public to be gained from the transfer. The commission shall approve the transfer after consideration of all relevant factors and upon finding that such transfer furthers the public interest.
3. Following approval of the transfer pursuant to this section, the transferee shall be granted full authority to provide the transferred services subject to the continuing regulation of the commission. The transferor shall no longer have any authority to provide the transferred services, but shall retain authority to provide other services, if any are retained, which were not included in such transfer.
4. This section shall not apply to any transfers falling under § 65-4-112. This section shall apply to all other utility service transfers, including, but not limited to, the transfer of the authority to provide communications services held by a land line telephone company pursuant to § 65-30-105(h).
5. To the extent transferees receiving authority under this section would be prohibited from performing the service by § 65-30-104, § 65-30-105(a), or § 65-30-105(f)(2), those sections are declared inapplicable.

Acts 1993, ch. 23, § 1; 1994, ch. 545, § 1; 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Compiler's Notes. Former § 65-4-113, concerning service requirements, was transferred to § 65-4-114 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

Amendments. The 2017 amendment substituted “the commission” for “the authority” twice in (a) and in the first sentences of (b) and (c); and substituted “The commission” for “The authority” at the beginning of the last sentence in (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-114. Service requirements.

The commission has the power, after hearing, upon notice, by order in writing, to require every public utility, as defined in § 65-4-101, to:

1. Furnish safe, adequate, and proper service and to keep and maintain its property and equipment in such condition as to enable it to do so; and
2. Establish, construct, maintain, and operate any reasonable extension of its existing facilities where, in the judgment of the commission, such extension is reasonable and practicable, and will furnish sufficient business to justify the construction, operation, and maintenance of the same, and when the financial condition of the public utility affected reasonably warrants the original expenditure required in making such extension, or to abandon any service when, in the judgment of the commission, the public welfare no longer requires the same.

Acts 1919, ch. 49, § 5; Shan. Supp., § 3059a88; Code 1932, § 5451; T.C.A. (orig. ed.), § 65-414; Acts 1993, ch. 23, § 1; T.C.A., § 65-4-113; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Administrative Law — 1956 Tennessee Survey (James B. Earle), 9 Vand. L. Rev. 913 (1956).

65-4-115. Unjust practices and unsafe services prohibited.

No public utility shall adopt, maintain, or enforce any regulation, practice, or measurement which is unjust, unreasonable, unduly preferential or discriminatory, nor shall any public utility provide or maintain any service that is unsafe, improper, or inadequate, or withhold or refuse any service which can reasonably be demanded and furnished when ordered by the commission.

Acts 1919, ch. 49, § 6; Shan. Supp., § 3059a89; Code 1932, § 5452; T.C.A. (orig. ed.), § 65-422; Acts 1993, ch. 23, § 1; T.C.A., § 65-4-114; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Compiler's Notes. Former § 65-4-115, concerning penalties for violations of this chapter, was transferred to § 65-4-116 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

Amendments. The 2017 amendment substituted “the commission” for “the authority” at the end of the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4.

65-4-116. Penalties.

1. The penalties prescribed by chapter 3 of this title shall be and remain in full force and effect, and shall in every case apply to any public utility within this chapter in the same manner and to the same extent as they are made applicable to and imposed on railroad and transportation companies under chapter 3 of this title.
2. In determining the amount of the penalty, the appropriateness of the penalty to the size of the business of the person, firm or corporation charged, the gravity of the violation and the good faith of the person, firm or corporation charged in attempting to achieve compliance, after notification of a violation, shall be considered. The amount of the penalty, when finally determined, may be deducted from any sums owing by the state to the person, firm or corporation charged or may be recovered in a civil action in the courts of this state.

Acts 1919, ch. 49, § 9; Shan. Supp., § 3059a92; Code 1932, § 5455; Acts 1969, ch. 156, § 1; T.C.A. (orig. ed.), § 65-423; Acts 1991, ch. 439, §§ 3, 4; 1993, ch. 23, § 1; T.C.A., § 65-4-115.

Compiler's Notes. Former § 65-4-116, concerning the former commission's regulatory powers, was transferred to § 65-4-117 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

65-4-117. Regulatory powers of commission — The 2-1-1 collaborative — Statewide 2-1-1 advisory council.

1. The commission has the power to:
   1. Investigate, upon its own initiative or upon complaint in writing, any matter concerning any public utility as defined in § 65-4-101;
   2. Request the comptroller of the treasury, from time to time, appraise and value the property of any public utility, as defined in § 65-4-101, whenever in the judgment of the commission such appraisal and valuation shall be necessary for the purpose of carrying out any of the provisions of this chapter. The comptroller of the treasury's office is hereby authorized to make such valuation and in that process may have access to and use any books, documents or records in the possession of any department or board of the state or any political subdivision of the state. For purposes of rate regulation the Tennessee public utility commission has the specific authority to have access to books, documents or records in possession of any department or board of the state or any political subdivision of the state;
   3. After hearing, by order in writing, fix just and reasonable standards, classifications, regulations, practices or services to be furnished, imposed, observed and followed thereafter by any public utility;
   4. After hearing, by order in writing, ascertain and fix adequate and serviceable standards for the measurement of quantity, quality, pressure, voltage, or other condition, pertaining to the supply of the product or service rendered by any public utility, and to prescribe reasonable regulations for examination, test and measurement of such product or service;
   5. After hearing, by order in writing, establish reasonable rules and regulations, specifications and standards, to secure accuracy of all meters and appliances for measurements;
   6. Provide for the examination and test of any appliance used for the measuring of any product or service of a public utility, and by its agents or examiners to enter upon any premises occupied by any public utility, for the purpose of making the examination and test provided for in this chapter; and
   7. Fix the fees to be paid by any consumer or user of any product or service of a public utility, who may apply to the commission for such examination or test to be made. Any consumer or user may have any such appliance tested upon the payment of the fees fixed by the commission, which fees shall be repaid to the consumer or user if the appliance be found defective or incorrect to the disadvantage of the consumer or user, and in that event such fees shall be paid by the public utility concerned.
2. 1. Not later than December 31, 2004, the commission shall designate an entity to be the 2-1-1 collaborative for the state of Tennessee, such 2-1-1 collaborative being designated in order to be qualified to obtain federal grants relating to 2-1-1 service in Tennessee. The commission may designate an entity to be the 2-1-1 collaborative based on either the petition of an entity seeking such designation, or based on the commission's own motion.
   2. 1. There is created a statewide 2-1-1 advisory council consisting of up to eighteen (18) members who shall be appointed by the commission. The Tennessee Alliance of Information and Referral Systems and the United Ways of Tennessee shall submit recommendations to the commission for potential appointees to the advisory council. The advisory council shall be representative of the various 2-1-1 service stakeholders, including, but not limited to, governmental entities, call centers, non-profit organizations, foundations and corporate entities. In making recommendations for appointment to the advisory council, the Tennessee Alliance of Information and Referral Systems and the United Ways of Tennessee shall do so with a conscious intent of selecting persons who reflect a diverse mixture with respect to race and gender.
      2. The 2-1-1 advisory council is charged with advising and assisting the commission in establishing statewide standards that will ensure that the citizens of this state are served by an efficient and effective 2-1-1 service. To that end, the commission is empowered to promulgate rules and regulations that further define the role of the advisory council, that adopt standards for 2-1-1 service and as may otherwise be necessary to implement this subdivision (b)(2).

Acts 1919, ch. 49, § 4; Shan. Supp., § 3059a87; Code 1932, § 5450; T.C.A. (orig. ed.), § 65-424; Acts 1993, ch. 23, § 1; T.C.A., § 65-4-116; Acts 1995, ch. 305, §§ 17, 20; 2004, ch. 762, § 2; 2009, ch. 275, § 1; 2017, ch. 94, § 51.

Compiler's Notes. Former § 65-4-117, concerning former commission employees, was transferred to § 65-4-118 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

Acts 2004, ch. 762, § 1 provided that the title of the act is and may be cited as the “Calling for 2-1-1 Act”.

Acts 2009, ch. 275, § 2 provided that nothing in the act shall be construed as requiring or permitting any state funding relative to 2-1-1 service provision, including, but not limited to, reimbursement of any expenses for advisory council members related to their participation on the advisory council.

Amendments. The 2017 amendment substituted “The commission” for “The authority” and “the commission” for “the authority” throughout; substituted “Tennessee public utility commission” for “Tennessee regulatory authority” in the last sentence of (a)(2); and substituted “the commission's own motion” for “the authority's own motion”  at the end of (b)(1).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339 (1947-1948).

65-4-118. Consumer advocate division.

1. There is created a consumer advocate division in the office of the attorney general and reporter which shall consist of various positions which may include attorneys, accountants/financial analysts, support personnel and other personnel as determined by the attorney general and reporter to be appropriate and necessary to accomplish the purposes of this section. As part of the annual appropriations process, the attorney general and reporter may request the general assembly to increase or eliminate positions within the division. The offices of the division shall be located wherever the attorney general and reporter, in the attorney general and reporter's discretion, shall so choose.
2. 1. The consumer advocate division has the duty and authority to represent the interests of Tennessee consumers of public utilities services. The division may, with the approval of the attorney general and reporter, participate or intervene as a party in any matter or proceeding before the commission or any other administrative, legislative or judicial body and initiate such proceeding, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and the rules of the commission.
   2. If the consumer advocate division concludes that it is without sufficient information to initiate a proceeding, it may petition the commission, after notice to the affected utility, to obtain information from the utility. The petition shall state with particularity the information sought and the type of proceeding that may be initiated if the information is obtained. Additionally, the consumer advocate division may request information from the commission staff, and, if the commission staff is in possession of the requested information, such information shall be provided within ten (10) days of the request.
3. If the consumer advocate division initiates an appeal of a commission decision, the defense of the appeal shall be the responsibility of the commission through its legal staff.
4. The consumer advocate division may enter into agreements regarding the nondisclosure of trade secrets or other confidential commercial information obtained by the division.
5. The attorney general and reporter shall hire, fire, supervise, direct and control the personnel and activities of the consumer advocate division, and the employees of the division shall be employees of the attorney general and reporter for the purposes of title 8, chapter 6.
6. The attorney general and reporter shall prepare, each year, a budget for the consumer advocate division for the next fiscal year and submit the budget for inclusion in the attorney general and reporter's budget request for review and final approval by the general assembly. Reports on the operations and other matters relative to the consumer advocate division shall be filed by the attorney general and reporter with the general assembly and other governmental entities.
7. The division shall be funded from the general fund as appropriated in the general appropriations act.

Acts 1921, ch. 107, § 6; Shan. Supp., § 3059a108; Code 1932, § 5468; T.C.A. (orig. ed.), § 65-434; Acts 1982, ch. 788, § 7; 1993, ch. 23, § 1; T.C.A., § 65-4-117; Acts 1994, ch. 913, § 1; 1995, ch. 305, §§ 18-20; 2017, ch. 94, § 51.

Compiler's Notes. The consumer advocate division in the office of the attorney general and reporter, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Former § 65-4-118, concerning complaints referred to former commission employees, was transferred to § 65-4-119 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

Amendments. The 2017 amendment substituted “commission” for “authority” in subsections (b) and (c).

Cross-References. Confidentiality of public records, § 10-7-504.

Attorney General Opinions. Audits of utilities by consumer advocate division, OAG 95-044, 1995 Tenn. AG LEXIS 43 (4/25/95).

Funding of the consumer advocate division, OAG 97-023, 1997 Tenn. AG LEXIS 10 (3/11/97).

65-4-119. Complaints referred to employees.

Any person employed by the commission in the consumer advocate division may be assigned by the commission to investigate, hear, and, wherever possible, adjust any individual or general complaint made by any person against any such public utility, wherein its investment, property, service charges, or claims preferred against it, may be involved, and may hear and take proof, and, in the event the commission employee is unable to effect a satisfactory adjustment of any such complaint, then the commission employee shall certify the same to the commission, with recommendations in the premises, whereupon the commission shall, after hearing, make its final order, which shall be binding upon the parties to any such controversy.

Acts 1921, ch. 107, § 6; Shan. Supp., § 3059a109; Code 1932, § 5469; T.C.A. (orig. ed.), § 65-435; Acts 1993, ch. 23, § 1; T.C.A., § 65-4-118; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Compiler's Notes. Former § 65-4-119, concerning penalty for noncompliance was transferred to § 65-4-120 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

Amendments. The 2017 amendment substituted “commission” for “authority”  throughout the section.

65-4-120. Penalty for noncompliance with authority.

Any public utility which violates or fails to comply with any lawful order, judgment, finding, rule, or requirement of the commission, shall in the discretion of the commission be subject to a penalty of fifty dollars ($50.00) for each day of any such violation or failure, which may be declared due and payable by the commission, upon complaint, and after hearing, and when paid, either voluntarily, or after suit, which may be brought by the commission, shall be placed to the credit of the public utility account.

Acts 1921, ch. 107, § 10; Shan. Supp., § 3059a114; Code 1932, § 5470; T.C.A. (orig. ed.), § 65-436; Acts 1993, ch. 23, § 1; T.C.A., § 65-4-119; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Compiler's Notes. Former § 65-4-120, concerning appeals, was transferred to § 65-4-121 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

65-4-121. Appeals.

Any appeal, order, decision, ruling or action of the commission affecting any utility as defined in § 65-4-101, exclusive of railroads or common carriers, or any company engaged in the transmission of intelligence or communications, shall be filed in a court of record of competent jurisdiction in the county in which the dispute or matters in controversy arose; and no other nisi prius court of this state shall have jurisdiction to hear and determine such appeal. In the event of an appeal from the judgment or order of circuit or chancery court reviewing such order, or judgment, such appeal shall be prosecuted to the court of appeals in the grand division of the state in which the dispute or matters in controversy arose; and any appeal therefrom shall be perfected to the supreme court.

Acts 1935, ch. 46, § 1; C. Supp. 1950, § 5470.1; impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-437; Acts 1993, ch. 23, § 1; T.C.A., § 65-4-120; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “commission” for “authority”  preceding “affecting any utility” at the beginning of the section.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Public Service Commissions, §§ 3, 5.

Law Reviews.

Tennessee Appellate Procedure and the Uniform Administrative Procedures Act (William J. Harbison), 6 Mem. St. U.L. Rev. 291 (1976).

65-4-122. Discriminatory charges — Reasonableness of rates — Unreasonable preferences — Penalties.

1. If any common carrier or public service company, directly or indirectly, by any special rate, rebate, drawback, or other device, charges, demands, collects, or receives from any person a greater or less compensation for any service within this state than it charges, demands, collects, or receives from any other person for service of a like kind under substantially like circumstances and conditions, and if such common carrier or such other public service company makes any preference between the parties aforementioned, such common carrier or other public service company commits unjust discrimination, which is prohibited and declared unlawful.
2. Any such corporation which charges, collects, or receives more than a just and reasonable rate of toll or compensation for service in this state commits extortion, which is prohibited and declared unlawful.
3. It is unlawful for any such corporation to make or give an undue or unreasonable preference or advantage to any particular person or locality, or any particular description of traffic or service, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic or service to any undue or unreasonable prejudice or disadvantage.
4. Any such corporation that shall be guilty of extortion or unjust discrimination, or of giving to any person or locality, or to any description of traffic an undue or unreasonable preference or advantage, shall be fined in any sum not less than five hundred dollars ($500) nor more than two thousand dollars ($2,000).
5. An action may be brought by any person against any person or corporation, owning or operating such public service company in Tennessee, for the violation of this section, before any court having jurisdiction to try the same.

Acts 1995, ch. 305, § 137.

65-4-123. Declaration of telecommunications services policy.

The general assembly declares that the policy of this state is to foster the development of an efficient, technologically advanced, statewide system of telecommunications services by permitting competition in all telecommunications services markets, and by permitting alternative forms of regulation for telecommunications services and telecommunications services providers. To that end, the regulation of telecommunications services and telecommunications services providers shall protect the interests of consumers without unreasonable prejudice or disadvantage to any telecommunications services provider; universal service shall be maintained; and rates charged to residential customers for essential telecommunications services shall remain affordable.

Acts 1995, ch. 408, § 1.

Law Reviews.

The Battle for the Book: First-in-the-Nation Ruling Gives Competitors Access to Cover of Bellsouth Directory (Melvin T. Malone and T. Harold Pinkley), 39 No. 7 Tenn. B.J. 18 (2003).

65-4-124. Administrative rules.

1. All telecommunications services providers shall provide non-discriminatory interconnection to their public networks under reasonable terms and conditions; and all telecommunications services providers shall, to the extent that it is technically and financially feasible, be provided desired features, functions and services promptly, and on an unbundled and non-discriminatory basis from all other telecommunications services providers.
2. The Tennessee public utility commission shall, at a minimum, promulgate rules and issue such orders as necessary to implement the requirements of subsection (a) and to provide for unbundling of service elements and functions, terms for resale, interLATA presubscription, number portability, and packaging of a basic local exchange telephone service or unbundled features or functions with services of other providers.
3. These rules shall also ensure that all telecommunications services providers who provide basic local exchange telephone service or its equivalent provide each customer a basic White Pages directory listing, provide access to 911 emergency services, provide free blocking service for 900/976 type services, provide access to telecommunications relay services, provide Lifeline and Link-Up Tennessee services to qualifying citizens of the state and provide educational discounts existing on June 6, 1995.
4. The granting of applications for certificates of convenience and necessity to competing telecommunications service providers or the adoption of a price regulation plan for incumbent local exchange telephone companies is not dependent upon the promulgation of these rules.

Acts 1995, ch. 408, § 8; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “The Tennessee public utility commission” for “The Tennessee regulatory authority” at the beginning of (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-125. Changes in telecommunications service provider — Regulation — Enforcement — Surety bond or irrevocable letter of credit.

1. No telecommunications service provider, and no person acting on behalf of any telecommunications service provider, shall designate or change the provider of telecommunications services to a subscriber if the provider or person acting on behalf of the provider knows or reasonably should know that such provider or person does not have the authorization of such subscriber.
2. No telecommunications service provider, and no person acting on behalf of any telecommunications service provider, shall bill and collect from any subscriber to telecommunications services any charges for services to which the provider or person acting on behalf of the provider knows or reasonably should know such subscriber has not subscribed, or any amount in excess of that specified in the tariff or contract governing the charges for such services.
3. The Tennessee public utility commission shall establish a consumer complaint form on the Internet for reporting telecommunications service providers or persons acting on their behalf who charge the provider of telecommunications services in violation of this section. Any Internet sites which are maintained by the commission, the general assembly or the governor's office shall contain a link to such form.
4. The Tennessee public utility commission shall adopt rules implementing this section, including, without limitation, rules specifying the manner in which subscriber authorization may be obtained and confirmed.
5. The Tennessee public utility commission may entertain and decide complaints and issue orders, including, without limitation, show cause orders, to enforce this section and its rules against any telecommunications service provider, or any person acting on behalf of any telecommunications service provider.
6. A telecommunications provider or person acting on behalf of a telecommunications provider who violates any provision of this section, any regulation promulgated pursuant to this section or any order issued to enforce the provisions of this section shall be subject to a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each day of any such violation. Such civil penalty shall be due and payable to the commission and shall be credited to the public utility account. The commission shall consider mitigating factors as raised by the telecommunications service provider in assessing the amount of the civil penalty. The commission shall allocate at least twenty-five percent (25%) of the revenue collected from such civil penalty for consumer education.
7. Any telecommunications provider or person acting on behalf of a telecommunications provider who violates this section or regulations promulgated pursuant to this section shall pay damages to each subscriber affected by such conduct in an amount equal to all charges and fees for services for which the subscriber has not subscribed, including all amounts in excess of allowable charges for such services, and any cost incurred to reinstate the subscriber's original telecommunications service.
8. This section shall not have the effect of amending or superseding any provisions of the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1.
9. This section shall not have the effect of superseding any existing rules of the Tennessee public utility commission, or any order or proceeding to enforce such existing rules. Any such existing rules shall remain in effect until such time as the Tennessee public utility commission adopts new rules pursuant to this section.
10. By September 1, 2000, all telecommunications service providers subject to the control and jurisdiction of the commission, except those owners or operators of public telephone service who pay annual inspection and supervision fees pursuant to § 65-4-301(b), or any telecommunications service provider that owns and operates equipment facilities in Tennessee with a value of more than five million dollars ($5,000,000), shall file with the commission a corporate surety bond or irrevocable letter of credit in the amount of twenty thousand dollars ($20,000) to secure the payment of any monetary sanction imposed in any enforcement proceeding, brought under this title or the Consumer Telemarketing Protection Act of 1990, compiled in title 47, chapter 18, part 15, by or on behalf of the commission.

Acts 1998, ch. 709, §§ 1-5; 2000, ch. 586, §§ 1-3; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority”, “the commission” for “the authority”, and “The commission” for “The authority”  throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-126. State policy on using energy more efficiently.

The general assembly declares that the policy of this state is that the Tennessee public utility commission will seek to implement, in appropriate proceedings for each electric and gas utility, with respect to which the commission has rate making authority, a general policy that ensures that utility financial incentives are aligned with helping their customers use energy more efficiently and that provides timely cost recovery and a timely earnings opportunity for utilities associated with cost-effective measurable and verifiable efficiency savings, in a way that sustains or enhances utility customers' incentives to use energy more efficiently.

Acts 2009, ch. 531, § 53; 2017, ch. 94, § 51.

Compiler's Notes. For the Preamble to the act concerning the operation and funding of state government and to fund the state budget for the fiscal years beginning on July 1, 2008, and July 1, 2009, please refer to Acts 2009, ch. 531.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority”  and “the commission” for “the authority”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Part 2
Certificate of Public Convenience and Necessity

65-5-101. Power to fix rates of public utilities.

1. The Tennessee public utility commission has the power after hearing upon notice, by order in writing, to fix just and reasonable individual rates, joint rates, tolls, fares, charges or schedules thereof, as well as commutation, mileage, and other special rates which shall be imposed, observed, and followed thereafter by any public utility as defined in § 65-4-101, whenever the commission shall determine any existing individual rate, joint rate, toll, fare, charge, or schedule thereof or commutation, mileage, or other special rates to be unjust, unreasonable, excessive, insufficient, or unjustly discriminatory or preferential, howsoever the same may have heretofore been fixed or established. In fixing such rates, joint rates, tolls, fares, charges or schedules, or commutation, mileage or other special rates, the commission shall take into account the safety, adequacy and efficiency or lack thereof of the service or services furnished by the public utility.
2. Notwithstanding any other state law, special rates and terms negotiated between public utilities that are telecommunications providers and business customers shall not constitute price discrimination. Such rates and terms shall be presumed valid. The presumption of validity of such special rates and terms shall not be set aside except by complaint or by action of the Tennessee public utility commission commissioners, which Tennessee public utility commission action or complaint is supported by substantial evidence showing that such rates and terms violate applicable legal requirements other than the prohibition against price discrimination. Records of such special rates and terms shall be retained by the telecommunications provider for the length of time that such rates and terms apply, but shall not be filed with the commission. Such rates shall be effective upon execution by the parties.
3. Notwithstanding any other law, the tariffs of incumbent local exchange telephone companies establishing rates or terms, or both, for telecommunications services shall be filed with the commission and shall be effective twenty-one (21) days after filing, subject to the following requirements:
   1. Tariffs establishing rates or terms that are valid only for one hundred eighty (180) days or less shall be effective one (1) business day after filing;
   2. Tariffs may be revoked by the commission after notice and a hearing;
   3. 1. Tariffs may be suspended pending such hearing on a showing by a complaining party that:
         1. The complaining party has filed a complaint before the commission alleging with particularity that the tariff violates a specific law;
         2. The complaining party would be injured as a result of the tariff and has specifically alleged how it would be so injured; and
         3. The complaining party has a substantial likelihood of prevailing on the merits of its complaint;
      2. The commission may suspend a tariff pending a hearing, on its own motion, upon finding such suspension to be in the public interest. The standard established herein for suspension of tariffs shall apply at all times including the twenty-one (21) or one (1) day period between filing and effectiveness;
      3. The standard established herein for suspension of tariffs shall not be applicable in any way to the determination by the commission of whether to convene a contested case to consider revocation of a tariff. The commission may choose to convene a contested case, or decline to convene a contested case, in its own discretion, to promote the public interest. The standard established in this subdivision (c)(3) for suspension of tariffs shall not be applicable in any way to any decision by the commission regarding revocation of a tariff;
   4. Nothing in this subsection (c) shall alter the existing power of the commission to review those rate increases that are governed by price regulation or rate of return; and
   5. Notwithstanding this subsection (c), the commission may, in its discretion, shorten the twenty-one (21) day period between filing and effectiveness for good cause shown.
4. In fixing rates, joint rates, tolls, fares, charges, or schedules for service, no privately owned public utility that supplies water to municipal governments is allowed to charge rates, joint rates, tolls, fares, charges, or schedules of any kind whatsoever in connection with fire hydrant service to a municipal government providing fire protection services within the service area. The utility, however, may recover its costs of providing fire hydrant service by charging rates, joint rates, tolls, fares, charges or schedules to its non-municipal government customers within the service area as approved by the Tennessee public utility commission. New rates shall take effect as prescribed by the Tennessee public utility commission in a rate proceeding. Such rate proceeding shall be initiated by the utility or the Tennessee public utility commission itself. Such rate proceeding shall be commenced within 120 days after May 18, 2004. The utility shall continue to collect its current authorized rates from a municipality until new rates are placed into effect by the Tennessee public utility commission. The municipal government will reimburse the state for any consequent increase in expenditures to the state, up to fifty thousand dollars ($50,000), which results directly from this subsection (d).

Acts 1919, ch. 49, § 4; Shan. Supp., § 3059a87; Code 1932, § 5450; Acts 1974, ch. 470, § 1; T.C.A. (orig. ed.), § 65-518; Acts 1995, ch. 305, § 23; 2003, ch. 41, § 1; T.C.A. § 65-5-201; Acts 2004, ch. 545, § 1; 2004, ch. 716, § 1; 2005, ch. 173, § 1; 2017, ch. 94, § 52.

Compiler's Notes. Former part 1, §§ 65-5-101 — 65-5-115 (Acts 1897, ch. 10, §§ 8, 15-24, 34; 1907, ch. 390, § 2; Shan., §§ 3059a22, 3059a40-3059a45, 3059a47-3059a54, 3059a83; Code 1932, §§ 5397, 5416-5421, 5423-5430, 5446; Acts 1953, ch. 230, § 2 (Williams § 5470.4); impl. am. 1955, ch. 69, § 1; 1957, ch. 273, § 1; T.C.A. (orig. ed.), §§ 65-501 — 65-517; Acts 1989, ch. 591, § 13; 1995, ch. 305, § 21), concerning regulation of freight carriers, was repealed by Acts 1997, ch. 39, § 1, effective April 2, 1997.

Acts 2004, ch. 716, § 2 provided that the provisions of this act shall not apply to utility districts heretofore or hereafter created under the “Utility District Act of 1937,” compiled in title 7, chapter 82.

Amendments. The 2017 amendment, throughout the section, substituted “Tennessee public utility commission” for “Tennessee regulatory authority”, and substituted “The commission” for “The authority”, and  “the commission” for “the authority”; and substituted “Tennessee public utility commission commissioners” for “Tennessee regulatory authority directors” in the second sentence of (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Attorney General Opinions. County authority to establish rates for privately owned utility franchise, OAG 97-114, 1997 Tenn. AG LEXIS 148 (8/14/97).

Constitutionality of discount utility rates for senior citizens.  OAG 12-26, 2012 Tenn. AG LEXIS 26 (2/29/12).

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Gas Companies, § 5; 21 Tenn. Juris., Public Service Commissions, § 5.

65-5-102. Commission may require filing of schedules.

The commission has the power to require every such public utility to file with it complete schedules of every classification employed and of every individual or joint rate, toll, fare, or charge made or exacted by it for any product supplied or service rendered within this state as specified in such requirement.

Acts 1919, ch. 49, § 4; Shan. Supp., § 3059a87; Code 1932, § 5450; T.C.A. (orig. ed.), § 65-519; Acts 1995, ch. 305, § 23; T.C.A. § 65-5-202; Acts 2017, ch. 94, § 52.

Amendments. The 2017 amendment substituted “The commission” for “The authority” at the beginning of the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Gas Companies, § 5.

65-5-103. Changes in utility rates, fares, schedules — Implementation of alternative regulatory methods to allow for public utility rate reviews and cost recovery in lieu of a general rate case proceeding.

1. When any public utility shall increase any existing individual rates, joint rates, tolls, fares, charges, or schedules thereof, or change or alter any existing classification, the commission  shall have power either upon written complaint, or upon its own initiative, to hear and determine whether the increase, change or alteration is just and reasonable. The burden of proof to show that the increase, change, or alteration is just and reasonable shall be upon the public utility making the same. In determining whether such increase, change or alteration is just and reasonable, the commission  shall take into account the safety, adequacy and efficiency or lack thereof of the service or services furnished by the public utility. The commission  shall have authority pending such hearing and determination to order the suspension, not exceeding three (3) months from the date of the increase, change, or alteration until the commission  shall have approved the increase, change, or alteration; provided, that if the investigation cannot be completed within three (3) months, the commission  shall have authority to extend the period of suspension for such further period as will reasonably enable it to complete its investigation of any such increase, change or alteration; and provided further, that the commission  shall give the investigation preference over other matters pending before it and shall decide the matter as speedily as possible, and in any event not later than nine (9) months after the filing of the increase, change or alteration. It shall be the duty of the commission  to approve any such increase, change or alteration upon being satisfied after full hearing that the same is just and reasonable.
2. 1. If the investigation has not been concluded and a final order made at the expiration of six (6) months from the date filed of any such increase, change or alteration, the utility may place the proposed increase, change or alteration, or any portion thereof, in effect at any time thereafter prior to the final commission  decision thereon upon notifying the commission, in writing, of its intention so to do; provided, that the commission  may require the utility to file with the commission  a bond in an amount equal to the proposed annual increase conditioned upon making any refund ordered by the commission  as provided in subdivision (b)(2).
   2. Where increased rates or charges are thus made effective, the interested utility shall maintain its records in such a manner as will enable it, or the commission, to determine the amounts to be refunded and to whom due, in the event a refund is subsequently ordered by the commission as provided in this subdivision (b)(2). Upon completion of the hearing and decision, the commission  may order the utility to refund, to the persons in whose behalf such amounts were paid, such portion of such increase, change or alteration as shall have been collected under bond and subsequently disallowed by the commission. If the commission, at any time during the initial three (3) months' suspension period, finds that an emergency exists or that the utility's credit or operations will be materially impaired or damaged by the failure to permit the rates to become effective during the three-month period, the commission  may permit all or a portion of the increase, change or alteration to become effective under such terms and conditions as the commission  may by order prescribe. Any increase, change or alteration placed in effect under this subsection (b) under bond may be continued in effect by the utility, pending final determination of the proceeding by final order of the commission  or, if the matter be appealed, by final order of the appellate court. Should the final order of the commission  be appealed while increased rates or charges are being collected under bond, the court shall have power to order an increase or decrease in the amount of the bond as the court may determine to be proper. In the event that all or any portion of such rates or charges have not been placed into effect under bond before the commission, the court considering an appeal from an order of the commission  shall have the power to permit the utility to place all or any part of the rates or charges into effect under bond.
3. In the event the commission, by order, directs any utility to make a refund, as provided in subsection (b), of all or any portion of such increase, change or alteration, the utility shall make the same within ninety (90) days after a final determination of the proceeding by final order of the commission  or, if the matter be appealed, by final order of the appellate court, with lawful interest thereon.
4. 1. 1. The commission  is authorized to implement alternative regulatory methods to allow for public utility rate reviews and cost recovery in lieu of a general rate case proceeding before the commission.
      2. For all alternative regulatory methods, the commission  is authorized to develop minimum filing requirements and procedural schedules; provided, however, that a final determination of the commission  pursuant to any alternative regulatory method be made by the commission  no later than one hundred twenty (120) days from the initial filing by the public utility.
      3. If the commission  denies an alternative regulatory method filed by a public utility, the commission  shall set forth with specificity the reasons for its denial and the public utility shall have the right to refile, without prejudice, an amended plan or amendment within sixty (60) days of the issuance of a final order. The commission  shall thereafter have sixty (60) days to approve or deny the amended plan or amendment.
   2. 1. A public utility may request and the commission  may authorize a mechanism to recover the operational expenses, capital costs or both, if such expenses or costs are found by the commission  to be in the public interest, related to any one (1) of the following:
         1. Safety requirements imposed by the state or federal government;
         2. Ensuring the reliability of the public utility plant in service;
         3. Replacement of or upgrades to usage measurement devices; or
         4. Weather-related natural disasters.
      2. The commission  shall grant recovery and shall authorize a separate recovery mechanism or adjust rates to recover operational expenses, capital costs or both associated with the investment in such safety and reliability facilities, including the return on safety and reliability investments at the rate of return approved by the commission  at the public utility's most recent general rate case pursuant to § 65-5-101 and subsection (a), upon a finding that such mechanism or adjustment is in the public interest.
   3. 1. A public utility may request and the commission  may authorize a mechanism to recover the operational expenses, capital costs or both related to the expansion of infrastructure for the purpose of economic development, if such expenses or costs are found by the commission  to be in the public interest. Expansion of economic development infrastructure may include, but is not limited to, the following:
         1. Infrastructure and equipment associated with alternative motor vehicle transportation fuel;
         2. Infrastructure and equipment associated with combined heat and power installations in industrial or commercial sites; and
         3. Infrastructure that will provide opportunities for economic development benefits in the area to be directly served by the infrastructure.
      2. The commission  shall grant recovery and shall authorize a separate recovery mechanism or adjust rates to recover operational expenses, capital costs or both associated with the investment in such economic development facilities, including the return on such economic development investments at the rate of return approved by the commission  at the public utility's most recent general rate case pursuant to § 65-5-101 and subsection (a), upon a finding that such mechanism or adjustment is in the public interest.
   4. 1. 1. A public utility may request and the commission  may authorize a mechanism to recover expenses associated with efforts to promote economic development in its service territory, if such expenses are found by the commission  to be in the public interest.
         2. Efforts to promote economic development may include, but are not limited to, foregone revenues associated with economic development riders and rates.
         3. Expenses described in subdivision (d)(4)(A)(ii) may be reflected in cost of service and be subject to recovery through the annual review process in subdivision (d)(6).
      2. Upon a finding that expenses to promote economic development have been incurred, the commission  shall authorize a separate recovery mechanism or adjust rates to recover such expenses or grant recovery through the annual review process set forth in subdivision (d)(6), upon a finding that such mechanism or adjustment is in the public interest.
   5. 1. A public utility may request and the commission  may authorize a mechanism to recover the operational expenses, capital costs or both related to other programs that are in the public interest.
      2. A utility may request and the commission  may authorize a mechanism to allow for and permit a more timely adjustment of rates resulting from changes in essential, nondiscretionary expenses, such as fuel and power and chemical expenses.
      3. Upon a finding that such programs are in the public interest, the commission  shall grant recovery and shall authorize a separate recovery mechanism or adjust rates to recover operational expenses, capital costs or both associated with the investment in other programs, including the rate of return approved by the commission  at the public utility's most recent general rate case pursuant to § 65-5-101 and subsection (a).
   6. 1. A public utility may opt to file for an annual review of its rates based upon the methodology adopted in its most recent rate case pursuant to § 65-5-101 and subsection (a), if applicable.
      2. In order for a public utility to be eligible to make an election to opt into an annual rate review, the public utility must have engaged in a general rate case pursuant to § 65-5-101 and subsection (a) within the last five (5) years; provided, however, that the commission  may waive such requirement or increase the eligibility period upon a finding that doing such would be in the public interest.
      3. Pursuant to the procedures set forth in subdivision (d)(1), the commission  shall review the annual filing by the public utility within one hundred twenty (120) days of receipt and order the public utility to make the adjustments to its tariff rates to provide that the public utility earns the authorized return on equity established in the public utility's most recent general rate case pursuant to § 65-5-101 and subsection (a).
      4. 1. A public utility may terminate an approved annual review plan only by filing a general rate case pursuant to § 65-5-101 and subsection (a).
         2. The commission  may terminate an approved annual review plan only after citing the public utility to appear and show cause why the commission  should not take such action pursuant to the procedures in § 65-2-106.
         3. The commission  or the public utility may propose a modification to the approved annual review plan for consideration by the commission. The commission  shall determine whether any proposed modification is in the public interest and should be approved within the time frame set forth in subdivision (d)(6)(C). If the commission  denies a modification to the approved annual review plan, the commission  shall set forth with specificity the reasons for its denial.
   7. In addition to the alternative regulatory methods described in this subsection (d), a public utility may opt to file for other alternative regulatory methods. Upon a filing by a public utility for an alternative method not prescribed, the commission  is empowered to adopt policies or procedures, that would permit a more timely review and revisions of the rates, tolls, fares, charges, schedules, classifications or rate structures of public utilities, and that would further streamline the regulatory process and reduce the cost and time associated with the ratemaking processes in § 65-5-101 and subsection (a).
5. For purposes of this section, “public utility” does not include a telecommunications carrier that elects market regulation pursuant to § 65-5-109.

Acts 1919, ch. 49, § 5; Shan. Supp. § 3059a88; Code 1932, § 5451; Acts 1973, ch. 59, § 1; 1974, ch. 470, § 2; T.C.A. (orig. ed.), § 65-520; Acts 1983, ch. 347, § 1; 1995, ch. 305, § 23; T.C.A. § 65-5-203; Acts 2013, ch. 245, § 5; 2017, ch. 94, § 52; 2019, ch. 95, § 1.

Amendments. The 2017 amendment substituted “the commission” for “the authority” and “The commission” for “The authority” throughout the section.

The 2019 amendment added present (d)(2)(A)(iii) and resdesignated former (d)(2)(A)(iii) as present (d)(2)(A)(iv).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Acts 2019, ch. 95, § 2. March 28, 2019.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Public Service Commissions, § 5.

65-5-104. Unjust rate, fare, schedule or classification prohibited.

1. No public utility shall:
   1. Make, impose, or exact any unreasonable, unjustly discriminatory or unduly preferential individual or joint rate, or special rate, toll, fare, charge, or schedule for any product, or service supplied or rendered by it within this state; or
   2. Adopt or impose any unjust or unreasonable classification in the making or as the basis of any rate, toll, charge, fare, or schedule for any product or service rendered by it within this state.
2. Any measure taken by any public utility to avoid discrimination in rates, charges, fees and in the availability and quality of energy against consumers using solar- or wind-powered equipment as a source of energy shall not be considered unreasonable, unjust, or unduly preferential in violation of this section, unless such customers do not have sufficient safety equipment to protect the suppliers from damage.

Acts 1919, ch. 49, § 6; Shan. Supp., § 3059a89; Code 1932, § 5452; Acts 1980, ch. 756, § 3; T.C.A. (orig. ed.), § 65-521; Acts 1995, ch. 305, § 23; T.C.A. § 65-5-204.

Cross-References. Discrimination against consumers using solar- or wind-powered equipment prohibited, § 65-4-105.

Municipal public works, discrimination against consumers using auxiliary energy sources, § 7-34-114.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4.

65-5-105. Intrastate rate reductions reflecting tax savings.

Any public utility, the maximum rates of which are fixed by the commission, shall reduce its intrastate rates to reflect any tax savings resulting from Acts 1989, ch. 312. Such rate reduction shall be implemented contemporaneously with the effective date of the tax savings.

Acts 1989, ch. 312, § 1; 1995, ch. 305, § 23; T.C.A. § 65-5-205; Acts 2017, ch. 94, § 52.

Compiler's Notes. For codification of Acts 1989, ch. 312, see the Session Law Disposition Table in Volume 13.

Amendments. The 2017 amendment substituted “commission” for “authority” in the first sentence.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-5-106. Operator-assisted telephone services — Carriers whose rates exceed maximum approved rates.

1. Any telephone carrier offering or providing operator-assisted services in Tennessee whose intrastate rates exceed the maximum rate approved by the Tennessee public utility commission or whose interstate rates exceed the maximum rates approved by the federal communications commission (FCC) shall before providing the service:
   1. Identify by name the carrier providing the service;
   2. State all costs for providing the service; and
   3. Offer to switch the customer to any other carrier offering operator-assisted services and inform the customer that the switch will be made without charge.
2. As used in this section:
   1. “Maximum rate approved by the federal communications commission (FCC)” means the highest legal rate charged for handling an identical call by a carrier which has been classified by the FCC as a dominant, interstate carrier or, if no carrier has been so classified, means the highest rate approved by the FCC as just and reasonable for an identical call;
   2. “Maximum rate approved by the Tennessee public utility commission” means the highest legal rate charged for handling an identical call by a carrier whose rates have been fixed by the commission based on the carrier's cost of providing service; and
   3. “Operator-assisted services” means all telephone calls in which the customer is assisted by either a human or mechanical operator and includes, but is not limited to, calls billed to credit cards or third parties and all collect or person-to-person calls.
3. The commission may exempt any carrier from some or all of the provisions of this section upon a finding that the requirements are no longer necessary to protect the public interest.
4. Any telephone carrier violating this section is guilty of violating the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1, and shall be punished accordingly.

Acts 1990, ch. 675, § 1; 1995, ch. 305, § 23; T.C.A. § 65-5-206; Acts 2017, ch. 94, § 52.

Compiler's Notes. Acts 1990, ch. 675, § 3 provided that this section apply only to telephone calls which originate in Tennessee and which are billed to an address located within Tennessee.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” in (a) and (b)(2); and substituted “commission” for “authority” in (b)(2) and (c).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Attorney General Opinions. A long-distance telephone service reseller may charge a fee of eighty-five cents each time that it provides intrastate long distance directory assistance to Tennessee customers, OAG 00-133, 2000 Tenn. AG LEXIS 134 (8/18/00).

65-5-107. Universal service — Funding.

1. In order to ensure the availability of affordable residential basic local exchange telephone service, the commission shall formulate policies, promulgate rules and issue orders which require all telecommunications service providers to contribute to the support of universal service.
2. The commission shall create an alternative universal service support mechanism that replaces current sources of universal service support only if it determines that the alternative will preserve universal service, protect consumer welfare, be fair to all telecommunications service providers, and prevent the unwarranted subsidization of any telecommunications service provider's rates by consumers or by another telecommunications service provider. To accomplish these objectives, the commission, if it creates or subsequently modifies an alternative universal service support mechanism, shall:
   1. Restrict recovery from the mechanism by any telecommunications service provider to an amount equal to the support necessary to provide universal service;
   2. Consider provision of universal service by incumbent local exchange telephone companies and by other telecommunications service providers;
   3. Order only such contributions to the universal service support mechanism as are necessary to support universal service and fund administration of the mechanism;
   4. Administer the universal service support mechanism in a competitively neutral manner, and in accordance with established commission rules and federal statutes;
   5. Determine the financial effect on each universal service provider caused by the creation or a modification of the universal service support mechanism, and rebalance the effect through a one-time adjustment of equal amount to the rates of that provider;
   6. When ordering a modification, include changes in the cost of providing universal service in the rebalancing required by subdivision (b)(5);
   7. When performing its duties under subdivisions (b)(5) and (6), order no increase in the rates for any interconnection services; and
   8. Consider, at a minimum:
      1. The amount by which the embedded cost of providing residential basic local exchange telephone service exceeds the revenue received from the service, including the cost of the carrier-of-last-resort obligation, for both high- and low-density service areas;
      2. The extent to which rates for residential basic local exchange telephone service should be required to meet the standards of § 65-5-108(c); and
      3. Intrastate access rates and the appropriateness of such rates as a significant source of universal service support.
3. The commission shall monitor the continued functioning of universal service mechanisms and shall conduct investigations, issue show cause orders, entertain petitions or complaints, or adopt rules in order to assure that the universal service mechanism is modified and enforced in accordance with the criteria set forth in this section.
4. Nothing in this section shall be construed to require the commission to raise residential basic local exchange telephone service rates.
5. Any universal service support mechanism created pursuant to this part shall hereafter be known as the universal service program. To implement any such universal service program, there is established a special reserve account in the state's general fund to be funded and allocated in accordance with this section and rules promulgated by the commission. Such fund shall be known as the universal service program support mechanism fund. Moneys from the fund may be expended in accordance with such universal service program. Any moneys deposited in the fund shall remain in such account until expended for purposes consistent with such program and shall not revert to the general fund on any June 30. Any interest earned by deposits in such account shall not revert to the general fund on any June 30 but shall remain in such account until expended for purposes consistent with the universal service program.

Acts 1995, ch. 408, § 4; 2001, ch. 124, § 1; T.C.A. § 65-5-207; Acts 2013, ch. 61, § 1; 2017, ch. 94, § 52.

Code Commission Notes.

Former subsection (b), concerning the initiation of a generic contested case proceeding within thirty (30) days of June 6, 1995, was deemed obsolete by the Code Commission in 2004.

Compiler's Notes. Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, 1996.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Attorney General Opinions. Authority's right to retain interest from universal service fund, OAG 98-0177, 1998 Tenn. AG LEXIS 177 (8/28/98).

65-5-108. Classification of services — Exempt services — Price floor — Maximum rates for non-basic services.

1. Services of incumbent local exchange telephone companies who apply for price regulation under § 65-5-109 are classified as follows:
   1. “Basic local exchange telephone services” are telecommunications services which are comprised of an access line, dial tone, touch-tone and usage provided to the premises for the provision of two-way switched voice or data transmission over voice grade facilities of residential customers or business customers within a local calling area, Lifeline, Link-Up Tennessee, 911 Emergency Services and educational discounts existing on June 6, 1995, or other services required by state or federal statute. These services shall, at a minimum, be provided at the same level of quality as is being provided on June 6, 1995. Rates for these services shall include both recurring and nonrecurring charges.
   2. “Non-basic services” are telecommunications services which are not defined as basic local exchange telephone services and are not exempted under subsection (b). Rates for these services shall include both recurring and nonrecurring charges.
2. The commission, after notice and opportunity for hearing, may find that the public interest and the policies set forth in this part are served by exempting a service or group of services from all or a portion of the requirements of this part. Upon making such a finding, the commission may exempt telecommunications service providers from such requirements as appropriate. The commission shall in any event exempt a telecommunications service for which existing and potential competition is an effective regulator of the price of those services.
3. Effective January 1, 1996, an incumbent local exchange telephone company shall adhere to a price floor for its competitive services subject to such determination as the commission shall make pursuant to § 65-5-107. The price floor shall equal the incumbent local exchange telephone company's tariffed rates for essential elements utilized by competing telecommunications service providers plus the total long-run incremental cost of the competitive elements of the service. When shown to be in the public interest, the commission shall exempt a service or group of services provided by an incumbent local exchange telephone company from the requirement of the price floor. The commission shall, as appropriate, also adopt other rules or issue orders to prohibit cross-subsidization, preferences to competitive services or affiliated entities, predatory pricing, price squeezing, price discrimination, tying arrangements or other anti-competitive practices.
4. The maximum rate for any new non-basic service first offered after June 6, 1995, shall not exceed the stand-alone cost of the service.

Acts 1995, ch. 408, § 9; T.C.A. § 65-5-208; Acts 2017, ch. 94, § 52.

Compiler's Notes. Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, 1996.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout (b) and (c).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-5-109. Price regulation plan.

1. Rates for telecommunications services are just and reasonable when they are determined to be affordable as set forth in this section. Using the procedures established in this section, the commission shall ensure that rates for all basic local exchange telephone services and non-basic services are affordable on the effective date of price regulation for each incumbent local exchange telephone company.
2. An incumbent local exchange telephone company shall, upon approval of its application under subsection (c), be empowered to, and shall charge and collect only such rates that are less than or equal to the maximum permitted by this section and subject to the safeguards in § 65-5-108(c) and (d) and the non-discrimination provisions of this title.
3. The commission shall enter an order within ninety (90) days of the application of an incumbent local exchange telephone company implementing a price regulation plan for such company. With the implementation of a price regulation plan, the rates existing on January 1, 2009, for all basic local exchange telephone services and non-basic services, as defined in § 65-5-108, are deemed affordable if the incumbent local exchange telephone company's earned rate of return on its most recent Tennessee public utility commission 3.01 report as audited by the commission staff pursuant to subsection (j) is equal to or less than the company's current authorized fair rate of return existing at the time of the company's application. If the incumbent local exchange telephone company's earned rate of return on its most recent Tennessee public utility commission 3.01 report as audited by the commission staff pursuant to subsection (j) is greater than the company's current authorized fair rate of return, the commission shall initiate a contested, evidentiary proceeding to establish the initial rates on which the price regulation plan is based. The commission shall initiate such a rate-setting proceeding to determine a fair rate of return on the company's rate base using the actual intrastate operating revenues, expenses, rate base and capital structure from the company's most recent Tennessee public utility commission 3.01 report as audited by the commission staff pursuant to subsection (j). If the incumbent local exchange telephone company's earned rate of return is less than its current authorized fair rate of return, the company may request the commission to initiate a contested, evidentiary proceeding to establish the initial rates upon which the price regulation plan is based. Upon request by the incumbent local exchange telephone company, the commission shall initiate such a contested, evidentiary proceeding using the same rate-setting procedures described above. Rates established pursuant to the above process shall be the initial rates on which a price regulation plan is based, subject to such further adjustment as may be made by the commission pursuant to § 65-5-107. Nothing in this section shall require a company that has elected price regulation prior to 2009 to reapply for price regulation or to reset its rates under its price regulation plan. Such a company is entitled, in its sole discretion, to the 1995 rates upon which its original election was based or may base its price regulation calculation upon rates in effect as of January 1, 2009.
4. If not resolved by agreement, the commission shall, on petition of the competing telecommunications services provider, hold a contested case proceeding within thirty (30) days to establish initial rates for new interconnection services provided by an incumbent local exchange telephone company subsequent to June 6, 1995, which rates shall be set in accordance with Acts 1995, ch. 408. The commission shall issue a final order within twenty (20) days of the proceeding.
5. A price regulation plan shall maintain affordable basic and non-basic rates by permitting a maximum annual adjustment that is capped at the lesser of one-half (½) the percentage change in inflation for the United States using the gross domestic product-price index (GDP-PI) from the preceding year as the measure of inflation, or the GDP-PI from the preceding year minus two (2) percentage points. An incumbent local exchange telephone company may adjust its rates for basic local exchange telephone services or non-basic services only so long as its aggregate revenues for basic local exchange telephone services or non-basic services generated by such changes do not exceed the aggregate revenues generated by the maximum rates permitted by the price regulation plan.
6. Notwithstanding the annual adjustments permitted in subsection (e), the initial basic local exchange telephone service rates of an incumbent local exchange telephone company subject to price regulation shall not increase for a period of four (4) years from the date the incumbent local exchange telephone company becomes subject to such regulation. At the expiration of the four-year period, an incumbent local exchange telephone company is permitted to adjust annually its rates for basic local exchange telephone services in accordance with the method set forth in subsection (e); provided, that the rate for residential basic local exchange telephone service shall not be increased in any one (1) year by more than the percentage change in inflation for the United States using the gross domestic product-price index (GDP-PI) from the preceding year as the measure of inflation. Nothing in this subsection (f) shall be construed to prohibit or limit residential basic local exchange rate increases or aggregate revenues permitted in subsection (e) caused by:
   1. Revenue neutral rate proposals that rebalance access revenue or touchtone revenue to residential basic local exchange service;
   2. Revenue neutral rate proposals that expand local calling areas; or
   3. Rate regrouping when it is based on population growth or expanded local calling such that there is an increase in the number of lines that end-users within the rate group can reach by local calling and the rate group no longer corresponds to the rate group definitions in a carrier's approved tariffs.
7. Notwithstanding any other provision of this section, a price regulation plan shall permit a maximum annual adjustment in the rates for interconnection services that is capped at the lesser of one-half (½) the percentage change in inflation for the United States using the gross domestic product-price index (GDP-PI) from the preceding year as the measure of inflation, or the GDP-PI from the preceding year minus two (2) percentage points. An incumbent local exchange telephone company may adjust its rates for interconnection services only so long as its aggregate revenues generated by such changes do not exceed the aggregate revenues generated by the maximum rates permitted by this subsection (g); provided, that each new rate must comply with the requirements of § 65-5-108 and the non-discrimination provisions of this title. Upon filing by a competing telecommunications service provider of a complaint, such rate adjustment shall become subject to commission review of the adjustment's compliance with this section and rules promulgated under this section. The commission shall stay the adjustment of rates and enter a final order approving, modifying or rejecting such adjustment within thirty (30) days of the complaint.
8. Incumbent local exchange telephone companies subject to price regulation may set rates for non-basic services as the company deems appropriate, subject to the limitations set forth in subsections (e) and (g), the non-discrimination provisions of this title, any rules or orders issued by the commission pursuant to § 65-5-108(c) and upon prior notice to affected customers. Rates for call waiting service provided by an incumbent local exchange telephone company subject to price regulation shall not exceed, for a period of four (4) years from the date the company becomes subject to such regulation, the maximum rate in effect in the state for such service on January 1, 2009; provided, however, that the maximum rate shall not apply to companies becoming subject to that regulation after June 1, 2009.
9. Incumbent local exchange telephone companies subject to price regulation are not required to seek regulatory approval of their depreciation rates or schedules.
10. For any incumbent local exchange telephone company electing price regulation under subsection (c), the commission shall conduct an audit to assure that the Tennessee public utility commission 3.01 report accurately reflects, in all material respects, the incumbent local exchange telephone company's achieved results in accordance with generally accepted accounting principles as adopted in Part 32 of the uniform system of accounts, and the ratemaking adjustments to operating revenues, expenses and rate base used in the commission's most recent order applicable to the incumbent local exchange telephone company. Nothing herein is to be construed to diminish the audit powers of the commission; provided, however, that such an audit shall not be conducted for a local exchange telephone company electing price regulation after June 1, 2009.
11. Incumbent local exchange telephone companies subject to price regulation shall maintain their commitment to the FYI Tennessee master plan to the completion of the funded requirements with any alterations to the plan to be approved by the commission.
12. 1. Any nonincumbent certificated provider of local exchange telephone or intrastate long distance telephone service or any incumbent certificated provider of local exchange or intrastate long distance telephone service that has elected price regulation pursuant to subsections (a)–(k) may, in its sole discretion, elect to operate pursuant to market regulation, by filing notice of its intent to do so with the commission, which shall be effective immediately upon filing.
    2. For purposes of the rural exemption under 47 U.S.C. § 251 only, the election to operate pursuant to market regulation by a rural incumbent certificated provider of local exchange or intrastate long distance telephone service, as provided in this section, shall constitute an acknowledgement that a bona fide request for interconnection or services is not unduly economically burdensome, is technically feasible, will not present a risk of a significant adverse economic impact on users of telecommunications services generally, is consistent with 47 U.S.C. § 254 and is consistent with the public interest, convenience and necessity. This subdivision (l )(2) shall not apply to any telephone cooperative organized pursuant to § 65-29-102.
13. Upon election of market regulation by a certificated provider, the provider shall be exempt from all commission jurisdiction, including, but not limited to, state-based regulation of retail pricing or retail operations, except as defined in subsection (n). Notwithstanding the limitations on commission jurisdiction over market-regulated companies under state law as set forth in this section, it is the express intent of the general assembly that the Tennessee public utility commission is authorized as a matter of state law to receive any jurisdiction delegated to it by the federal 1996 Telecommunications Act, in 47 U.S.C. § 214(e), or federal communications commission (FCC) orders or rules, including, without limitation, jurisdiction granted to hear complaints regarding anti-competitive practices, to set rates, terms and conditions for access to unbundled network elements and to arbitrate and enforce interconnection agreements. In addition, the commission shall continue to exercise its jurisdiction in its role as a dispute resolution forum to hear complaints between certificated carriers, including complaints to prohibit anti-competitive practices and to issue orders to resolve such complaints. The commission shall interpret and apply federal, not state, substantive law, which is hereby adopted so that such law is applicable to intrastate services for the purpose of adjudicating such state complaints. The commission shall adjudicate and enforce such claims in accordance with state procedural law and rules, including the enforcement and penalty provisions of § 65-4-120. No claim shall be brought to the Tennessee public utility commission as to which the FCC has exclusive jurisdiction. All complaints brought between carriers pursuant to this section shall be resolved by final order of the commission within one hundred eighty (180) days of the filing of the complaint.
14. A certificated provider electing market regulation shall be subject to the jurisdiction of the commission only when:
    1. The commission is exercising its jurisdiction as described in subsection (m);
    2. The commission is acting with respect to enforcement or modification of any wholesale self effectuating enforcement mechanism plan in place as of January 1, 2009; provided, that such actions are consistent with federal telecommunications law;
    3. The commission is assessing and collecting inspection fees calculated in accordance with chapter 4, part 3 of this title and election of market regulation shall not alter the character of any intrastate revenue or remove any source of intrastate revenue formerly included within gross receipts and used for purposes of assessment of the fees;
    4. The commission is exercising jurisdiction over video service franchises pursuant to the Competitive Cable and Video Services Act, compiled in title 7, chapter 59, part 3;
    5. The commission is exercising jurisdiction respecting underground facilities damage prevention;
    6. The commission is exercising jurisdiction respecting the Tennessee relay center services or the Tennessee Devices Access Program pursuant to § 65-21-115;
    7. The commission is exercising jurisdiction respecting the small and minority-owned business participation plan pursuant to § 65-5-112;
    8. The commission is exercising jurisdiction respecting universal service funding pursuant to § 65-5-107;
    9. The commission is exercising jurisdiction respecting intrastate switched access service;
    10. The commission is exercising jurisdiction respecting extensions of facilities pursuant to § 65-4-114(2), except that no market-regulated carrier shall be subject to the regulatory commission jurisdiction in this subdivision (n)(10) in any wire center or geographic area the carrier designates by filing notice of such designation with the regulatory commission. Such notice shall be effective immediately upon filing and not subject to regulatory commission review;
    11. The commission is exercising jurisdiction pursuant to § 65-4-125; provided, however, that the commission shall exercise its jurisdiction under subsections (a) or (b) only in connection with a complaint.
15. Incumbent local exchange providers that have elected market regulation shall not be entitled to the limitation on commission jurisdiction in subsection (n) with respect to those residential local exchange telecommunications services that are offered in exchanges with less than three thousand (3,000) access lines or, for carriers who serve more than one million (1,000,000) access lines in this state, those exchanges with access line counts and calling areas that would result in classification as rate group 1 or 2 under any such carrier's tariff in effect on January 1, 2009, and that are offered as single, individually priced services at a rate-group specific price rather than a state-wide or territory-wide price, except as follows:
    1. Upon petition by a market-regulated provider, the commission may order that such services shall be subject to the limitations on jurisdiction in subsection (n) by showing that each exchange has at least two (2) nonaffiliated telecommunications providers that offer service to customers in each zone rate area of each exchange;
    2. When counting the number of providers for the purpose of evaluating the competition standard in subdivision (o)(1), cable television providers that offer telephone and broadband services to residential customers may be included. Nonaffiliated providers of wireless service may be included in the count of providers but shall only count as one (1) provider regardless of the number of wireless providers. Nonaffiliated providers of voice over Internet protocol service shall not be counted for the purpose of evaluating the competitive exemption for residential service, unless the carrier seeking exemption offers a data service capable of supporting voice over Internet protocol service and does not require the purchase of voice telephony products to buy the data service. At least one (1) provider must be facilities-based and currently serving residential customers;
    3. When the petitioning party shows facts satisfying the competition standard set forth in subdivision (o)(1), the petitioner shall be entitled to a rebuttable presumption that the competition standard is satisfied;
    4. The petition shall be subject to an accelerated schedule. The commission must issue its decision on the petition, including its reasons, within ninety (90) days of the filing of the petition;
    5. Unregulated providers of service shall not be required to participate in the commission's docket considering the petition, but, to the extent such competitors intervene, they shall be required to provide discovery responses regarding the activities of the unregulated provider in such rate groups or exchanges. To the extent the petitioner seeks, but is unable to obtain discovery response from intermodal or unregulated providers regarding the competition present in such rate groups or exchanges, the petitioner shall be entitled to a rebuttable presumption that the unregulated provider is offering service in the area that is the subject of the petition;
    6. Whether or not such a petition is filed or granted, the limitations on commission jurisdiction set forth in subsection (n) shall automatically become applicable to all services of a market-regulated provider as of January 1, 2015; and
    7. The petition provided for in this subsection (o) shall be filed no earlier than one (1) year following May 21, 2009.
16. Notwithstanding this section, providers that elect market regulation shall remain subject to the Tennessee Consumer Protection Act, compiled in title 47, chapter 18.
17. Each year the commission shall prepare and submit to the general assembly a report describing the competitive nature of the communications market in Tennessee.
    1. The report shall, at a minimum, contain the following information:
       1. The number of telecommunications providers, including the technology used to provide service;
       2. The number of providers by county serving residential subscribers;
       3. The number of providers by county serving business subscribers; and
       4. The number of customers by customer type.
    2. In preparing the report, the commission shall rely on information filed with the commission or available as public information. The commission shall invite all providers of telecommunications services, including companies operating under market regulation, price cap regulation pursuant to this section, rate of return regulation, competitive carriers, wireless carriers, carriers offering voice over Internet protocol service, cable operators or other carriers known to provide such service in this state, to provide voluntary reports supplying information relating to the items in subdivision (q)(1) and relating to the services and products offered in this state and any other information the provider volunteers concerning future plans for deployment, new services, new technology or the scope of competition.
18. In the event that a carrier has elected market regulation and later chooses to exit the business of providing local exchange telephone service in an exchange by selling all of its network in that exchange to another entity, then the following shall apply:
    1. If the purchasing entity is a certificated carrier of local exchange telephone service in this state, then no regulatory requirements shall apply, except that nothing in this section shall preclude the exercise of commission jurisdiction as set forth in subsection (m); and
    2. Any purchasing entity that applies for a certificate in connection with a sale of the type described in this section shall be subject to no greater standards than those applied by the commission for other entities seeking certification pursuant to § 65-4-201; and a commission order granting or denying the certificate, including appropriate findings of fact and conclusions of law, shall be entered no later than thirty (30) days from the filing of the application.
19. Notwithstanding any other laws to the contrary, including, but not limited to, subsections (c) and (j), the earnings of an incumbent local exchange company operating under rate of return regulation shall not be considered in setting initial rates under this section for an incumbent local exchange company implementing a price regulation plan after January 1, 2009.
20. Notwithstanding any law to the contrary, any certificated provider of local exchange telephone service subject to market regulation may, at its election, file a tariff with the commission governing the rates, terms and conditions of any of its services. Such filed tariff shall become effective upon filing and be deemed approved, unless rejected by the commission upon finding that the tariff violates applicable law within twenty-one (21) days of filing. The approval of a tariff under this subsection (t) shall constitute publication and notice to consumers of the provisions of the tariff, specifically those provisions governing carrier and consumer liability, for purposes of the filed rate doctrine. Unless rejected as provided herein, such tariffs shall constitute binding tariffs to the same extent as tariffs of other providers not subject to market regulation, including application of the filed rate doctrine, and shall be subject to the rules and regulations of the commission governing customer notices to the same extent as such rules apply to providers not subject to market regulation.
21. The regulatory commission is prohibited from creating any new programs mandating discounts on retail telecommunications services or equipment without providing reimbursement to carriers. Any such unfunded discount program mandated by rules or orders of the regulatory commission or public service commission that was in place as of March 26, 2013, shall terminate sixty (60) days following March 26, 2013. Nothing in this subsection (u) shall apply to existing regulatory commission programs providing services for individuals who are deaf or hard of hearing.
22. The regulatory commission shall not impose any requirements relating to issuance or maintenance of a certificate pursuant to § 65-4-201 on any market-regulated entity or on any affiliate of a market-regulated entity.

Acts 1995, ch. 408, § 10; T.C.A. § 65-5-209; Acts 2005, ch. 71, § 1; 2009, ch. 278, §§ 2, 3; 2010, ch. 973, § 1; 2013, ch. 61, §§ 2-4; 2017, ch. 94, § 52; 2019, ch. 329, § 2.

Compiler's Notes. Acts 2009, ch. 278, § 1 provided that this act shall be known and may be cited as the “Market Regulation Act of 2009”.

Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, 1996.

Acts 1995, ch. 408, referred to in (d), enacted §§ 65-5-207 — 65-5-213 [now §§ 65-5-107 — 65-5-113], and amended numerous sections in this title. See the Session Laws Disposition table in Volume 13.

Compiler's Notes. Acts 2019, ch. 329, § 8 provided that the use of the term “deaf or hard of hearing” in the act, which amended this section, shall not be construed to infringe on any right or protection, or absolve any entity of its obligations under the Americans with Disabilities Act (42 U.S.C. §  12101 et seq.), or any other relevant law.

Amendments. The 2017 amendment, throughout the section, substituted “Tennessee public utility commission” for “Tennessee regulatory authority”, substituted “commission” for “authority”, and substituted “commission's” for “authority's”; and substituted “a commission order” for “an authority order” in (r)(2).

The 2019 amendment substituted “individuals who are deaf or hard of hearing” for “the hearing impaired” at the end of the last sentence of (u).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Acts 2019, ch. 329, § 9. May 8, 2019.

Attorney General Opinions. After chapter 490 of the Public Acts of 2017 becomes effective, the Comptroller of the Treasury will continue to be responsible for reappraising the properties of modern market telecommunications providers.  The reappraisal schedule for the telecommunications providers’ properties will remain the same.  Their localized and nonoperating real property will be updated in each county during that county’s reappraisal year.  Their operating properties will be assessed and updated annually. OAG 17-34, 2017 Tenn. AG LEXIS 34 (7/26/2017).

65-5-110. Commission jurisdiction.

1. In addition to any other jurisdiction conferred, the commission shall have the original jurisdiction to investigate, hear and enter appropriate orders to resolve all contested issues of fact or law arising as a result of the application of Acts 1995, ch. 408.
2. The consumer advocate shall retain all powers with respect to Acts 1995, ch. 408 as is provided in § 65-4-118, or any future legislation.
3. Nothing in Acts 1995, ch. 408 shall be construed as removing the powers of the former commission pursuant to § 65-5-102.
4. Nothing in Acts 1995, ch. 408 shall affect the authority and duty of the former commission to complete any investigation pending as of June 6, 1995.
5. Nothing in Acts 1995, ch. 408 shall be construed to affect the assessment for ad valorem taxation of property used to provide telecommunications services, and to that end it is declared that the fifty-five percent (55%) level of assessments shall remain applicable to property used in whole or in part to provide telecommunications services other than cellular telephone services, radio common carrier services, or long distance telephone services.

Acts 1995, ch. 408, §§ 11-14; T.C.A. § 65-5-210; Acts 2017, ch. 94, § 52.

Compiler's Notes. Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, 1996.

Acts 1995, ch. 408, referred to in this section, enacted §§ 65-5-207 — 65-5-213 [now §§ 65-5-107 — 65-5-113], and amended numerous sections in this title. See the Session Laws Disposition Table in Volume 13.

Amendments. The 2017 amendment substituted “the commission” for “the authority” in (a).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-5-111. Evaluation — Reports by commission.

The general assembly shall evaluate the implementation of Acts 1995, ch. 408, every two (2) years for not less than the next six (6) years by requiring the submission of a report prepared by the commission consisting of the following information:

1. The compliance of market participants with Acts 1995, ch. 408;
2. The status of universal service in Tennessee;
3. The availability of service capabilities and service offerings, subdivided by facilities-based and non-facilities-based, for each telecommunications services provider;
4. The number of customers, access lines served, and revenues, subdivided by residential and business, for each telecommunications services provider;
5. The impact of federal telecommunications initiatives;
6. The degree of technological change in the marketplace;
7. The technical compatibility between providers;
8. The service performance of providers; and
9. Any other information the commission considers necessary for proper oversight and evaluation.

Acts 1995, ch. 408, § 15; T.C.A. § 65-5-211; Acts 2017, ch. 94, § 52.

Compiler's Notes. Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, 1996.

Acts 1995, ch. 408, referred to in this section, enacted §§ 65-5-207 — 65-5-213 [now §§ 65-5-107 — 65-5-113], and amended numerous sections in this title. See the Session Laws Disposition Table in Volume 13.

Amendments. The 2017 amendment substituted “the commission” for “the authority” in the introductory language and in (9).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-5-112. Small and minority-owned telecommunications business participation plan.

Each telecommunications service provider shall file with the commission a small and minority-owned telecommunications business participation plan within sixty (60) days of June 6, 1995. Competing telecommunications service providers shall file such plan with the commission with their application for a certificate. Such plan shall contain such entity's plan for purchasing goods and services from small and minority telecommunications businesses and information on programs, if any, to provide technical assistance to such businesses. All providers shall update plans filed with the commission annually. For purposes of Acts 1995, ch. 408, “minority business” means a business which is solely owned, or at least fifty-one percent (51%) of the assets or outstanding stock of which is owned, by an individual who personally manages and controls the daily operations of such business, and who is impeded from normal entry into the economic mainstream because of race, religion, sex or national origin and such business has annual gross receipts of less than four million dollars ($4,000,000). For purposes of Acts 1995, ch. 408, “small business” means a business with annual gross receipts of less than four million dollars ($4,000,000).

Acts 1995, ch. 408, § 16; T.C.A. § 65-5-212; Acts 2017, ch. 94, § 52.

Compiler's Notes. Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, l996.

Amendments. The 2017 amendment substituted “the commission” for “the authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-5-113. Assistance program for small and minority-owned businesses.

1. The department of the treasury shall develop by rule an assistance program for small and minority-owned businesses, as defined in § 65-5-112, which may include loans and loan guarantees, technical assistance and services, and consulting and educational services to be funded solely from the fund established in subsection (b). The department shall administer the small and minority-owned business assistance program. It is the legislative intent that such program be designed with consideration of fair distribution of program assistance among the geographic areas of the state, the grand divisions, and small and minority-owned businesses. It is the legislative intent that the department use the assistance provided by this program to support the department's outreach to new, expanding, and existing businesses in Tennessee that do not have reasonable access to capital markets and traditional commercial lending facilities.
2. There is established a general fund reserve to be allocated in accordance with the small and minority-owned business assistance program by this section which shall be known as the small and minority-owned business assistance program fund. Moneys from the fund may be expended in accordance with such program. Any moneys deposited in the fund shall remain in the reserve until expended for purposes consistent with such program and shall not revert to the general fund on any June 30. Any interest earned by deposits in the reserve shall not revert to the general fund on any June 30 but shall remain available for expenditure in subsequent fiscal years.
3. It is within the state treasurer's discretion to accept new applications to participate in the small and minority-owned business assistance program after July 1, 2013. After July 1, 2013, the program shall administer all loans that are outstanding as of July 1, 2013, until the loans are matured or written-off. After July 1, 2013, and notwithstanding subsection (b), a portion of the small and minority-owned business program funds shall be transferred to the board of trustees of the college savings trust fund program to be utilized in an incentive plan or plans authorized in § 49-7-805(4), reserving such amounts that the state treasurer deems necessary for the administration of the small and minority-owned business program, as well as the administration and marketing of the incentive plan or plans. At least annually, the state treasurer shall evaluate the loan payments received by the small and minority-owned business assistance program and shall have the authority to transfer the funds from loan payments to the college savings trust fund program while reserving amounts for continued administration of the small and minority-owned business assistance program.

Acts 1995, ch. 408, § 17; 1998, ch. 707, § 1; T.C.A. § 65-5-213; Acts 2004, ch. 830, § 1; 2013, ch. 359, § 1; 2017, ch. 400, § 11.

Compiler's Notes. Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, 1996. The section as set out above does not reflect the amendment by that act.

Acts 1998, ch. 707, § 2 provided that the amendment to (a) shall apply to any required contribution for 1998 and subsequent years of the program.

Amendments. The 2017 amendment substituted “college savings trust fund program” for “baccalaureate education system trust fund program” twice in (c).

Effective Dates. Acts 2017, ch. 400, § 20. July 1, 2017.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Part 2
Broadband Business Certainty Act of 2006

65-6-101. Acquisition or construction of railroads — Acquisition and disposition of stocks or bonds.

All railroad companies of this state, and any other state or states, are empowered to build, lease or let, acquire by purchase, lease, or otherwise, and operate, hold, or dispose of any railroad or railroads in any state or states, or any parts or portions of any such railroad or railroads, and the distribution thereof, as may be determined by their stockholders, and to acquire by purchase or otherwise, and hold or dispose of any bonds or shares of the capital stock of any railroad company or companies in any state or states, and to endorse and guarantee the bonds of any railroad company or companies in any state or states, whose original charter of incorporation was granted by the state; provided, that the same should be approved by a vote of the holders of a majority of all of the outstanding shares entitled to vote thereon or upon receiving two thirds (2/3) of the votes which members present or represented at such meeting are entitled to cast, at a regular or called meeting of the stockholders of the company; and provided further, that ten (10) days' notice be given in a Memphis, Knoxville, Chattanooga and Nashville daily newspaper, of the time, place, and purpose of the meeting.

Acts 1881, ch. 9, § 2; 1891, ch. 61, § 1; Shan., § 1540; Acts 1921, ch. 71, § 1; Code 1932, § 2610; T.C.A. (orig. ed.), § 65-601; Acts 1984, ch. 739, §§ 1, 2.

Cross-References. Apportionment for excise tax purposes, § 67-4-2011.

Apportionment of capital for purposes of franchise tax, § 67-4-2111.

Assessment of property for tax purposes, title 67, ch. 5, part 13.

Grading of extension into state mines, § 41-22-104.

Leases of equipment and rolling stock may provide for conditional sales, § 65-10-111.

Levee or drainage district improvements, assessment for benefits, § 69-5-313.

Prohibition of gas storage tanks within two hundred feet of a railroad, § 68-101-105.

65-6-102. Issuance of bonds and stock.

Railroad companies existing under the laws of this state, or of this state and any other state or states, are empowered to issue bonds, and secure the payment thereof by mortgage upon their franchises and property in any state or states, or upon any part of such franchises and property, or to issue income or debenture bonds, and such guaranteed, preferred, and common stock as may be determined upon by the stockholders; provided, the same be approved by the votes of the holders of three-fourths (¾) in amount of the entire stock of the company, at a regular or called meeting of the stockholders of the company, and that ten (10) days' notice be given in a Memphis, Knoxville, and Nashville daily newspaper, of the time, place, and purpose of the meeting.

Acts 1881, ch. 9,  § 1; Shan., § 1542; impl. am. Acts 1921, ch. 71, § 1; mod. Code 1932, § 2611; T.C.A. (orig. ed.), § 65-602.

Cross-References. Bonds for purchase of other railroads, § 65-8-102.

Judgments for timbers, work, or damages to person or property, priority over mortgage, § 65-10-112.

Mortgage foreclosure, sale under decree, rights of purchasers, § 65-8-106.

65-6-103. Subscription for or purchase of stocks and bonds of other companies — Contracts for construction or lease.

It is lawful for any railroad company created by and existing under the laws of this state, and for any lessees of a railroad of such company, from time to time, to subscribe for or purchase the stock and bonds, or either, of any other railroad company or companies chartered by or of which the road or roads are authorized to extend into this state, when their roads shall be directly, or by means of intervening railroads, connected with each other; and to make contract with such company or companies for the construction, maintenance, repairs, or equipments, as well as lease of such other railroad or railroads, upon such terms as may be agreed upon by the companies owning the same, or by the companies and such lessees.

Acts 1869-1870 Private, ch. 49, § 4; Shan., § 1520; Code 1932, § 2595; T.C.A. (orig. ed.), § 65-603.

Cross-References. Authorization by stockholders, § 65-6-101.

Construction or leasing authorized, § 65-6-101.

65-6-104. Limitation of time removed from original franchise.

Any railroad corporation or other body heretofore granted the right or power to build and maintain a railroad in this state, for a limited number of years, and which now owns a railroad in this state, built and maintained pursuant to such grant or power, has all the rights and privileges as are conferred by any general statutes of this state upon railroad corporations, and may exercise the same without regard to and despite any limitations of years contained in any such original franchise or grant.

Acts 1929, ch. 52, § 1; mod. Code 1932, § 4013; T.C.A. (orig. ed.), § 65-604.

Collateral References.

Perpetual franchise. 2 A.L.R. 1105.

Power of corporation after expiration or forfeiture of its charter. 47 A.L.R. 1288, 97 A.L.R. 477.

65-6-105. Adoption of electricity for motive power.

Any company authorized to operate a railroad by steam is empowered to adopt electricity as its motive power, whether such railroad be wholly or only partly in the state.

Acts 1903, ch. 59, § 1; Shan., § 2425a1; Code 1932, § 4010; T.C.A. (orig. ed.), § 65-605.

65-6-106. Entry upon private lands for certain purposes.

The company, by its officers and agents, may enter upon the lands of private persons for the purpose of making surveys, estimates, and location of route.

Acts 1875, ch. 142, § 6; Shan., § 2425; Code 1932, § 4009; T.C.A. (orig. ed.), § 65-606.

65-6-107. Preference in location of line.

No railroad company shall have the right, by surveying or locating its line of railroad, to defer building its line of railroad to the exclusion of other companies that may sooner and more certainly build upon such line of route, but the company which, in good faith, first actually constructs its road over such route, shall have preference in the location of the route.

Acts 1899, ch. 399, § 1; Shan., § 1880a2; Code 1932, § 3147; T.C.A. (orig. ed.), § 65-607.

65-6-108. Location of first of two lines.

If, in determining any controversy over routes, it shall appear to the court that the second company, in good faith, intends to and probably will construct its road, the first line constructed shall be located, if practicable, so as not to make it unreasonably expensive to construct the other one.

Acts 1899, ch. 399, § 1; Shan., § 1880a3; Code 1932, § 3148; T.C.A. (orig. ed.), § 65-608.

65-6-109. Right-of-way authorized.

The corporation shall have the right, in pursuance of the general law authorizing the condemnation of private property for works of internal improvement, to appropriate as an easement a right-of-way, not exceeding two hundred feet (200'), over the land of any person through which the line of the track may be located.

Acts 1875, ch. 142, § 6; Shan., § 2413; Code 1932, § 4003; T.C.A. (orig. ed.), § 65-609.

Cross-References. Ditches and drains across, location, § 69-6-117.

Taking of land for internal improvements, § 29-16-101.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Eminent Domain, §§ 7, 71; 21 Tenn. Juris., Railroads, § 14.

65-6-110. Monopolizing right-of-way prohibited — Condemnation as in other cases.

No railroad company, whose railroad may be built in this state, has the right to hold, to the exclusion of other railroads to be built, by purchase or condemnation for its right-of-way, a wider strip of land than shall be necessary for its reasonable use in the transaction of its business; and any land owned, or right-of-way held, or acquired, by any such railroad company, which a jury of inquiry in condemnation proceedings shall find necessary for such reasonable use and business of the company, may be condemned for the use of other railroads thereafter to be built, in like manner as other private property.

Acts 1899, ch. 399, § 1; Shan., § 1880a1; mod. Code 1932, § 3146; T.C.A. (orig. ed.), § 65-610.

65-6-111. Joint right-of-way or joint use of track.

1. In case any railroad company has acquired or owns a right-of-way over which its road is not already built, through or along any narrow pass, cliff, or gorge, where it may be unreasonably expensive or impracticable to put down more than one (1) track or line of railroad, any other railroad company, in good faith, desiring to build its line of road through or along the same narrow pass, cliff, or gorge, shall have the right to condemn a joint use of the right-of-way through or along the same, and, if after any railroad to be constructed through or along the same shall already have been constructed, any other railroad so desiring to build through or along such narrow pass, gorge, or cliff shall have the right to condemn a joint use of so much of the track as may be necessary, in like manner as railroads have the right to cross each other.
2. Reasonable compensation shall be paid to the railroad company owning such right-of-way, or to the one whose right-of-way, or right-of-way and track, may be so condemned for such joint use with the other road, for its property and improvements and injury to its business, if any, which compensation, together with such reasonable restrictions as the jury of inquiry may prescribe at the expense of the second road for safely using such joint track, shall be fixed by the jury as in other cases of assessment of damages in the condemnation of private property.

Acts 1899, ch. 399, § 2; Shan., §§ 1880a4, 1880a5; Code 1932, §§ 3149, 3150; T.C.A. (orig. ed.), §§ 65-611, 65-612.

65-6-112. Existing rights-of-way unaffected.

Nothing contained in § 65-6-107, § 65-6-108, § 65-6-110, or § 65-6-111, shall be construed to affect any rights railroad companies, whose roads are already constructed and being operated, may have in respect to rights-of-way over which railroads are already being operated, it being the intention of such sections not, in any manner, to add to or take from such rights as they may have in those rights-of-way, but to apply only to roads or extensions or branch roads to be built.

Acts 1899, ch. 399, § 2; Shan., § 1880a6; Code 1932, § 3151; T.C.A. (orig. ed.), § 65-613.

65-6-113. Right-of-way at state line.

When any railroad of another state shall intersect the line of the state of Tennessee, at a point within five (5) miles of any railroad in this state, such road of other states is granted the right-of-way from such point of intersection to any point on the line of road in this state; provided, that such point of connection between the roads shall not be more than five (5) miles distant from the state line, and the same shall be subject to all laws of the state in reference to the right-of-way.

Acts 1871, ch. 55, § 1; Shan., § 1488; Code 1932, § 2570; T.C.A. (orig. ed.), § 65-614.

65-6-114. Rights of foreign companies.

1. Any railroad corporation created by the laws of any other state shall be empowered to extend its railroad into this state a distance not exceeding five (5) miles from the point of its entrance into this state, for the purpose of reaching a terminal point, or a general or a union depot in, or in the vicinity of, any city, town, or village in this state.
2. Such corporations may acquire the right-of-way for their railroads from the line of this state to their terminal points or depots in this state by purchase or by gift or by condemnation.
3. Such corporations shall have the power to purchase, hold, use, and enjoy all real estate necessary for the erection and maintenance of their depots, shops, yards, sidetracks, turnouts, and switches, both along the route and at their terminal points in this state; provided, that they shall first apply for and receive a charter in this state.

Acts 1887, ch. 160, §§ 1-3; Shan., §§ 1874-1876; Code 1932, §§ 3139-3141; T.C.A. (orig. ed.), §§ 65-615 — 65-617.

65-6-115. Gauge of road.

Any railroad corporation, whose line is located wholly or partly in the state, may adopt such gauge or gauges as its authorities may choose, and may alter the same at pleasure.

Acts 1885, ch. 20, § 1; Shan., § 2414; Code 1932, § 4004; T.C.A. (orig. ed.), § 65-618.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 15.

65-6-116. Change of terminus before final location.

Any railroad company may, by resolution of its board of directors, change either terminus of its line of railroad at any time before the final location of the same. This resolution shall be certified by the president and secretary of the company, under its corporate seal, and filed and registered as an amendment of its charter.

Acts 1887, ch. 39, §§ 1, 2; Shan., § 2415; mod. Code 1932, § 4005; T.C.A. (orig. ed.), § 65-619.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 9.

65-6-117. Power to relocate lines.

Any railroad company owning or operating a railroad or any part thereof in this state, whether chartered under the laws of this state or under the laws of any other state or states, is empowered to relocate or change its lines or tracks, to build second main or double tracks, relocate any part or parts of its lines for the purpose of reducing or taking out curves or reducing grades, and to build embankments for the purpose of avoiding trestles upon which the railroad may be constructed, or to widen cuts when necessary for proper construction; provided, that where there is a relocation of any part of a road and any industry located upon the original road, the railroad shall keep and maintain a spur or sidetrack to such industry; and where any landowner or the heir or devisee or successor in title by conveyance or otherwise of any landowner who donated the original right of way, or who parted with the easement upon or title to the same in any other manner than by voluntary sale for a full cash consideration, shall be injured by such relocation, the railroad company shall be liable therefor; provided, that under this section and §§ 65-6-118, 65-6-123, 65-6-129 and 65-6-131, no railroad shall be authorized to change the location of its line or lines within any incorporated towns, or cities, except by consent of the governing authorities of such incorporated towns or cities.

Acts 1907, ch. 464, § 1; Shan., § 1880a9; mod. Code 1932, § 3154; T.C.A. (orig. ed.), § 65-620.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 21.

65-6-118. Acquisition of real estate for relocation of lines.

For the purposes mentioned in § 65-6-117, authority is granted to such railroad companies to acquire by purchase, and to hold such real estate as may be necessary.

Acts 1907, ch. 464, § 2; Shan., § 1880a10; mod. Code 1932, § 3155; T.C.A. (orig. ed.), § 65-621.

65-6-119. Construction and maintenance of roadbeds.

Any railroad company owning or operating a railroad or any part thereof in this state, whether chartered under the laws of this state or under the laws of any other state or states, is empowered to fill its trestles and to make all creek changes necessary for the same; to construct channels and canals contiguous to its rights of way so as to prevent the unnecessary crossing of creeks and to make such other changes in the beds of creeks as may be necessary for the proper construction and maintenance of its roadbeds; provided, that where any property owner is damaged by such change in a creek, such landowners shall be entitled to just compensation for the same.

Acts 1911, ch. 55, § 1; Shan., § 1490a1; Code 1932, § 2576; T.C.A. (orig. ed.), § 65-622.

Cross-References. Acquisition of land for purposes of this section, § 65-6-128.

Drawbridges, maintenance across navigable watercourses, § 69-1-114.

Collateral References.

Application of statutes requiring railroads to provide for drainage or flow of waters to the obstruction of watercourses. 19 A.L.R.2d 967.

Grantor of railroad right of way or his privy, right of to recover damages for interference with surface water by construction of road. 19 A.L.R. 487.

Overflow, liability for, of railroad company diverting stream into new channel. 12 A.L.R. 187.

65-6-120. Construction of railroad on county highways.

It is unlawful for any corporation or person to construct or use an ordinary railroad for the transportation of freight and passengers upon any county road or county highway of this state, without the consent of the county legislative body of the county in which the road lies. Before it is lawful for the county legislative body to give such consent, the corporation desiring to construct such railroad shall procure and file with the county legislative body the written consent of the owners of the lands abutting upon such road or highway, aggregating in such abutting length at least one-half (½) of all the lands in value, such value to be the value of the abutting lands running back from such road two hundred feet (200') upon both sides of the road to be occupied by the railroad. Any ordinary railroad constructed upon such county road or highway, without the consent of the county legislative body first lawfully obtained, shall be considered a nuisance, and liable to be treated as such, both by the public authorities and by private persons. But when the consent of the county legislative body has been first lawfully obtained, such railroad may be lawfully constructed and operated upon such road or highway under such restrictions as to the manner of construction and mode of use as the county legislative body may see fit to impose in granting the license; provided, that railroads already constructed upon any road or highway of this state under a license of the county legislative body are declared to be lawfully constructed, and this section shall not be construed as requiring a new license from the county legislative body for such construction or operation under its provisions.

Acts 1889, ch. 226, § 1; Shan., § 1879; Code 1932, § 3144; impl. am. Acts 1978 ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 65-631.

Cross-References. Abatement of nuisances, title 29, ch. 3.

Attorney General Opinions. A county attorney may bring an action under the statute to abate a nuisance, OAG 01-166, 2001 Tenn. AG LEXIS 164 (11/15/01).

65-6-121. Compensation for damages from construction on county highway.

Section 65-6-120 shall not be construed so as to prevent the owners of land abutting upon such road from obtaining due compensation for damages arising from the construction of such railroad, such damages to be just compensation for all property taken, injured, or damaged by the building or operations of the railroad, such damages to be ascertained and paid before the right to appropriate the property to be occupied shall accrue, as provided by law.

Acts 1889, ch. 226, § 2; Shan., § 1880; Code 1932, § 3145; T.C.A. (orig. ed.), § 65-632.

65-6-122. Tracks not to obstruct travel on highways, streets, and alleys.

The line or track of the road shall be so constructed as not to interfere with the convenient travel of the public along the highways, county roads, streets, and alleys of cities, towns, and villages, and so as to allow vehicles conveniently and safely to pass over or under the line or track, and so as not to interrupt travel on foot or horseback, or in vehicles of any kind, in the proper use of the public road, street, or alley in the usual and proper mode for their convenience.

Acts 1875, ch. 142, § 6; Shan., § 2417; mod. Code 1932, § 4006; T.C.A. (orig. ed.), § 65-633.

Cross-References. Maintenance of highway crossings by railroads, §§ 65-11-101 — 65-11-104.

Law Reviews.

Torts — Intervening Cause — Pedestrian Injured by Motorist on Narrow Railroad Bridge, 27 Tenn. L. Rev. 629 (1960).

65-6-123. Condemnation of property to provide water for trains.

Any railroad corporation owning or operating a railroad or any part thereof in this state, whether chartered under the laws of this state or under the laws of any other state or states, is empowered to condemn property for a site for a reservoir or tank; also, the use of the water from any running stream, and also a way along which to lay pipeline or lines to convey water to its reservoir or tanks, whenever the same or any of them may be needed for the purpose of such railroad. The powers conferred in this section shall be exercised only for the erecting and maintaining of tanks and reservoirs for the purpose of operating trains. This section does not apply to springs or private ponds.

Acts 1907, ch. 254, § 1; Shan., § 1880a8; mod. Code 1932, § 3153; T.C.A. (orig. ed.), § 65-634.

65-6-124. Damage to forest growth in construction of railroads.

For all damages caused to forest growth by any person or construction company employed in the construction of any railroad to be built in this state, the person shall be primarily liable for the damage arising from such construction.

Acts 1907, ch. 397, § 13; Shan., § 2883a75b15 (p. 7226); Code 1932, § 5243; T.C.A. (orig. ed.), § 65-635.

Cross-References. Criminal penalties for fires to woodlands, §§ 39-14-303, 39-14-304.

65-6-125. Right to build branch roads.

Any railway corporation chartered under the general laws of the state, which may desire to build a branch road or branch roads from its main stem, shall have the right to do so by amendment of its charter.

Acts 1889, ch. 158, § 1; Shan., § 2426; mod. Code 1932, § 4011; T.C.A. (orig. ed.), § 65-636.

Cross-References. Acquisition of branch lines or extensions, § 65-6-130.

Extension of lines and facilities, § 65-6-127.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 9.

65-6-126. Branch lines for industrial purposes.

Any railroad company operating a railroad, or any part of same, in this state, shall have power to build or acquire lateral or branch lines of railroad, not to exceed fifteen (15) miles in length, for any one (1) of such lateral or branch roads, extending from its main stem in the state to any mine or quarry, or into any mineral section of country tributary to such main stem, or to any mill, factory, or to the bank of any navigable stream, for the purpose of developing the resources of the country without any amendment to the charter of the railroad. Such railroads shall have power to condemn private property for use in the construction and operation of such lateral or branch roads; provided, that private property shall not be taken therefor, against the owner's will, without condemnation thereof, as provided by law in other cases, and such roads shall be, as common carriers, subject to the same duties and restrictions as the main lines with which they connect.

Acts 1895, ch. 152, § 1; 1899, ch. 259, § 1; 1903, ch. 210, § 1; Shan., §§ 1489, 1872a1; mod. Code 1932, §§ 2571, 3137; modified; T.C.A. (orig. ed.), § 65-637.

Cross-References. Acquisition of branch lines or extensions, § 65-6-130.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Eminent Domain, § 17.

65-6-127. Power to build or extend lines and facilities.

Any railroad company owning or operating any railroad or any part thereof in the state, whether chartered under the laws of this state or under the laws of any other state or states, is empowered to build cut-off lines, branch lines, and other lines for the purpose of the better and more expeditious handling of the public business in the transportation of freight and passengers, and to construct, build, or extend any main line, branch line, or other line into, and to serve, other and different territory, and to build second main or double tracks, turnouts, switches, spur tracks, side-tracks, stations, depots, and terminal facilities.

Acts 1911, ch. 70, § 1; Shan., § 1489a1; Code 1932, § 2572; T.C.A. (orig. ed.), § 65-638.

Cross-References. Extension or lateral branch not exempt from taxation, § 65-6-131.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Eminent Domain, § 17.

65-6-128. Acquisition of land by purchase or condemnation.

For the purposes mentioned in §§ 65-6-119 and 65-6-127, power is granted to such railroad company to acquire by purchase and to hold such real estate as may be necessary or proper, and to acquire such real estate as may be necessary or proper for such purposes, by condemnation of private property for works of internal improvement as set forth in §§ 29-16-104 — 29-16-124, 29-16-202 and 29-16-203.

Acts 1911, ch. 55, § 2; 1911, ch. 70, § 2; Shan., §§ 1489a2, 1490a2; Code 1932, §§ 2573, 2577; T.C.A. (orig. ed.), § 65-639; Acts 2014, ch. 927, § 12.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Eminent Domain, §§ 7, 17; 21 Tenn. Juris., Railroads, § 10.

65-6-129. Powers in addition to those existing under charters.

The powers conferred by §§ 65-6-117 — 65-6-119, 65-6-127 and 65-6-128 are in addition to the powers which railroad companies have by virtue of their charters or by virtue of the general laws of the state.

Acts 1907, ch. 464, § 3; 1911, ch. 55, § 3; 1911, ch. 70, § 3; Shan., §§ 1489a3, 1490a3; 1880a11; Code 1932, §§ 2574, 2578, 3156; modified; T.C.A. (orig. ed.), § 65-640.

65-6-130. Acquisition of branches and extensions.

All railroad companies existing under the laws of this state, or of this state and any other state or states, whose charter of incorporation is granted by this state, are empowered to acquire the line or lines of any other railroad company, either in this state or any other state or states, which may connect with and form parts or branches or extensions of the line of such company chartered by this state, or by this state and any other state or states; and are empowered to so acquire such branches or extensions by purchase, lease, or otherwise, and pay for the same by the issue of their own capital and bonds, or by guaranteeing those issued by the company whose line may be so acquired, purchased, or leased; but nothing in this section shall be construed to authorize the acquisition in any way by any corporation or company of parallel or competing lines.

Acts 1891, ch. 125, § 1; Shan., § 1521; Code 1932, § 2596; T.C.A. (orig. ed.), § 65-641.

Cross-References. Amendment of charter to permit branch line construction, § 65-6-125.

Branch lines for industrial purposes, § 65-6-126.

Extension of lines and facilities, § 65-6-127.

65-6-131. Consolidation of competing or parallel lines unlawful — Liability for taxes.

Nothing in this chapter shall be construed to make it lawful for any railroad corporation to purchase or consolidate with any parallel or competing line of railway, whether constructed or in course of construction, or to exempt railroad companies from paying state, county, or municipal taxes upon such extensions, branches or new lines.

Acts 1889, ch. 158, § 3; 1895, ch. 152, § 2; 1899, ch. 259, § 2; 1899, ch. 399, § 2; 1907, ch. 464, § 4; 1911, ch. 55, § 4; Shan., §§ 1490, 1490a4, 1873, 1880a7, 1880a12, 2428; mod. Code 1932, §§ 2575, 2579, 3138, 3152, 3157, 4012; modified; T.C.A. (orig. ed.), § 65-642.

65-6-132. Trees to be cut down.

1. Every company or person operating a railroad in this state shall cut down all trees standing on its lands which are six (6) or more inches in a diameter two feet (2') above the ground and of sufficient height to reach the roadbed if they should fall.
2. A failure to comply with subsection (a) will render the company liable for all damages to person or property resulting therefrom; also to a penalty of one hundred dollars ($100), to be recovered on suit brought in the name of any citizen before any tribunal having jurisdiction, half of which shall go to the treasury of the county in which such provisions may have been disregarded, and the other half to the plaintiff.

Acts 1870-1871, ch. 78, §§ 1, 2; Shan., §§ 1584, 1585; mod. Code 1932, §§ 2648, 2649; T.C.A. (orig. ed.), §§ 65-643, 65-644.

65-6-133. Railroad police officers.

1. Any company or corporation owning or operating a railroad in this state may apply to the governor to commission such number of its agents, servants or employees as the company shall designate to act as police officers for the company.
2. The governor, upon such application, shall appoint such persons as the company designates, or as many thereof as the governor deems proper to be such police officers, and shall give commissions to those appointed.
3. Before entering into the performance of police duties, every police officer so appointed shall take and subscribe an oath of office, and enter into a surety bond in the sum of one thousand dollars ($1,000), payable to the state, conditioned for the faithful performance of such duties. Such oath of office and such bond, with a copy of the commission, shall be filed with the secretary of state.
4. Each police officer shall have and exercise throughout every county in which the company for which such officer was appointed shall do business, operate, or own property, the power to make arrests for violation of law on the property of such company, and to arrest persons, whether on or off such company's property, violating any law on such company's property, under the same conditions under which deputy sheriffs or other peace officers may by law make arrests, and shall have authority to carry weapons for the reasonable purpose of their offices. The keepers of jails in any county or municipality wherein the violation occurs for which any such arrest is made shall receive all persons arrested by such police officer to be dealt with according to law, and persons so arrested shall be received by keepers of jails on the same basis and shall have the same status as prisoners arrested by any other police officer.
5. Every police officer so appointed shall, when on duty, carry a badge or identification card identifying the officer as a member of the police department of such railroad company for or which such officer is appointed, and the officer shall exhibit such badge or identification card, on demand, and before making an arrest.
6. The compensation for such police officers shall be paid by the company for which they are respectively appointed.
7. When a company no longer requires the services of a police officer so appointed, it shall file a notice to that effect with the secretary of state. Thereupon, the powers of such police officer shall cease and terminate.
8. Any person commissioned as a police officer pursuant to this section shall, prior to such commission, receive peace officer standards and training certification.

Acts 1969, ch. 111, §§ 1-7; T.C.A., §§ 65-648 — 65-654; Acts 2009, ch. 372, § 3.

Compiler's Notes. Acts 2009, ch. 372, § 4, provided that the act, which added §§ 38-8-104(f), 38-8-107(e), and 65-6-133(h), shall apply to any railroad police officer commissioned pursuant to § 65-6-133 on or after July 1, 2009.

Cross-References. Employment and training of police officers, title 38, ch. 8.

Public officers preventing commission of offenses, title 38, ch. 3.

65-6-134. Locomotive engineer's operator permit.

Every company, association, person or other entity which employs or permits any person to operate a railroad locomotive shall issue to such person an engineer's operator permit. Such permit shall include the engineer's name, address, description, date of birth and a certification that such person is qualified as a locomotive engineer.

Acts 1980, ch. 542, § 2; T.C.A., § 65-655.

Cross-References. Carrying license while operating railroad locomotive required, § 65-12-115.

Part 2
Clearance Requirements

NOTES TO DECISIONS

1. Constitutionality.

The act of which this section is a part is not unconstitutional because of the provision in § 65-7-113 permitting the subscription to be paid in bonds without submitting the question of their issuance to the voters. Johnson City v. Railroad, 100 Tenn. 138, 44 S.W. 670, 1897 Tenn. LEXIS 97 (1897).

The constitutional provision prohibiting counties and municipal corporations to give or lend their credit or to become stockholders in any enterprises for county and corporation purposes, respectively, is self-executing as to the restriction and limitation upon their power; but this constitutional provision does not, by implication, authorize the giving or lending of credit, or the taking of stock in such enterprises, even upon the assent of three fourths of the votes cast in the election. The required election to obtain such assent of the voters must be authorized and held pursuant to valid statute enacted for that purpose. Johnson City v. Railroad, 100 Tenn. 138, 44 S.W. 670, 1897 Tenn. LEXIS 97 (1897). See Tax-Payers of Milan v. Tennessee C. R. Co., 79 Tenn. 329, 1883 Tenn. LEXIS 69 (1883); State ex rel. Morristown & C. G. R. Co. v. Mayor, etc., of Morristown, 93 Tenn. 239, 24 S.W. 13, 1893 Tenn. LEXIS 50 (1893); Richardson v. Marshall County, 100 Tenn. 346, 45 S.W. 440, 1897 Tenn. LEXIS 123 (1898).

2. Subscription of Stock.

A subscription to stock of railroad by city under terms prescribed by Acts 1887, was not subject to implied condition that city was not liable if all the stock necessary to complete the enterprise was not taken. Sweeney v. Tennessee C. R. Co., 118 Tenn. 297, 100 S.W. 732, 1906 Tenn. LEXIS 98 (1907).

3. Subscription to Foreign Railroad Stock.

The subscription for stock in a foreign railroad corporation and the issuance of bonds in payment therefor by a municipal corporation are not authorized by any statute in this state, and such bonds are absolutely void. Johnson City v. Railroad, 100 Tenn. 138, 44 S.W. 670, 1897 Tenn. LEXIS 97 (1897). But see Municipal Trust Co. v. Johnson City, 116 F. 458, 1902 U.S. App. LEXIS 4353 (6th Cir. Tenn. 1902), cert. denied, Johnson City v. Municipal Trust Co., 194 U.S. 636, 24 S. Ct. 859, 48 L. Ed. 1161, 1904 U.S. LEXIS 805 (1903).

A recital in municipal bonds that they were issued pursuant to and in accordance with this statute does not estop the municipality to dispute the validity of the bonds in the hands of an innocent holder where they were illegally issued to a nonresident railroad corporation. Johnson City v. Railroad, 100 Tenn. 138, 44 S.W. 670, 1897 Tenn. LEXIS 97 (1897). But see Municipal Trust Co. v. Johnson City, 116 F. 458, 1902 U.S. App. LEXIS 4353 (6th Cir. Tenn. 1902), cert. denied, Johnson City v. Municipal Trust Co., 194 U.S. 636, 24 S. Ct. 859, 48 L. Ed. 1161, 1904 U.S. LEXIS 805 (1903).

Collateral References.

Fraud by nonperformance of promise of railroad aid. 51 A.L.R. 123, 68 A.L.R. 635, 91 A.L.R. 1295, 125 A.L.R. 879.

Taxation for purpose of municipal aid to railroad company, as within constitutional provisions prohibiting legislature from imposing taxes for town, county, city and corporate purposes. 46 A.L.R. 728, 106 A.L.R. 906.

NOTES TO DECISIONS

1. Construction.

In construing contract for issuance of bonds in three installments for construction of railroad to three separate points within the county, this section providing for issuance of bonds for construction of railroad terminating in county should be construed with § 65-7-112 providing for issuance of bonds in installments. Shell v. Carter County, 42 S.W. 78, 1896 Tenn. Ch. App. LEXIS 118 (1896).

NOTES TO DECISIONS

1. Application.

The application for the subscription must purport, in terms, upon its face, to be made under this statute. The requirement of the statute is mandatory. State ex rel. Morristown & C. G. R. Co. v. Mayor, etc., of Morristown, 93 Tenn. 239, 24 S.W. 13, 1893 Tenn. LEXIS 50 (1893).

The subscription for stock in a railroad company cannot be sustained where the application describes two lines, only one of which is located by survey, with the cost of construction estimated, as required by the statute, and the other left wholly indefinite; and the road is actually built upon a line and to a terminus other than that defined in the application. State ex rel. Morristown & C. G. R. Co. v. Mayor, etc., of Morristown, 93 Tenn. 239, 24 S.W. 13, 1893 Tenn. LEXIS 50 (1893).

The plan or map showing the general direction and line of the railroad in the county, certified by the chief engineer of the company, is sufficient. Tennessee C. R. Co. v. Campbell, 109 Tenn. 655, 73 S.W. 112, 1902 Tenn. LEXIS 97 (1903).

NOTES TO DECISIONS

1. Election Order.

It is not the unqualified duty of the board to order an election. The board is not required to consider the general question of expediency. It would seem that the qualification of the applicant, as to whether it is a foreign or domestic corporation, is one of the subjects, an important one, to be considered in forming an opinion whether the application should be submitted to the electors or not. The general trend of the decisions is to hold that, unless there is clear evidence to the contrary, the general assembly intended that the question of the existence of the conditions upon which the power is granted should be referred to the governing body of the municipality exercising the power. Municipal Trust Co. v. Johnson City, 116 F. 458, 1902 U.S. App. LEXIS 4353 (6th Cir. Tenn. 1902), cert. denied, Johnson City v. Municipal Trust Co., 194 U.S. 636, 24 S. Ct. 859, 48 L. Ed. 1161, 1904 U.S. LEXIS 805 (1903).

NOTES TO DECISIONS

1. “Votes” Defined.

The word “votes” means legal votes, for illegal votes or ballots do not really constitute votes at all. Catlett v. Knoxville, S. & E. R. Co., 120 Tenn. 699, 112 S.W. 559, 1908 Tenn. LEXIS 52 (1908).

2. Pleading of Illegal Votes.

Allegation in complaint to enjoin issuance of bonds by county to pay for subscription to stock of railroad that specified persons voted illegally in election, and that approval of three fourths of the voters was not legally obtained, was a privileged statement by the pleader since it was essential to his cause of action, and pleader was therefore not liable in damages to a voter for publishing defamatory matter. Crockett v. McLanahan, 109 Tenn. 517, 72 S.W. 950, 1902 Tenn. LEXIS 90, 61 L.R.A. 914 (1903).

NOTES TO DECISIONS

1. Construction.

In construing contract for issuance of bonds in installments conditioned upon railroad being completed to three points within the county, this section providing for issuance of bonds in installments should be construed with § 65-7-102 providing for subscription of stock of railroad terminating in county. Shell v. Carter County, 42 S.W. 78, 1896 Tenn. Ch. App. LEXIS 118 (1896).

2. Installment Contract.

Where contract provided for issuance of $50,000 in bonds of county for subscription to stock of railroad to terminate in county, and where contract further provided that bonds would be issued in installments upon railroad reaching a specified point in the county, an issue of bonds in amount of $20,000 when railroad reached first point in county was valid even though railroad could not be completed within two years specified in contract. Shell v. Carter County, 42 S.W. 78, 1896 Tenn. Ch. App. LEXIS 118 (1896).

NOTES TO DECISIONS

1. Constitutionality.

Permitting the subscription to be paid in bonds to be issued without submitting the question of their issuance to the voters does not render the statute invalid or unconstitutional, for the payment of a valid subscription in bonds is not a lending of credit in the sense of Tenn. Const., art. II, § 29. Johnson City v. Railroad, 100 Tenn. 138, 44 S.W. 670, 1897 Tenn. LEXIS 97 (1897); Red River Furnace Co. v. Tennessee C. R. Co., 113 Tenn. 697, 87 S.W. 1016, 1904 Tenn. LEXIS 60 (1903).

2. Recitals in Bonds.

Where the bonds recited their issuance under statute, and “in issuing the same all the provisions and requirements of each of said statutes have been strictly fulfilled and complied with,” the municipality was precluded by such recitals from denying that the company was a domestic corporation, in a suit by a bona fide holder of such bonds, where a domestic corporation of the same name existed, and its articles of incorporation were of record, in the county where the bonds were issued. Municipal Trust Co. v. Johnson City, 116 F. 458, 1902 U.S. App. LEXIS 4353 (6th Cir. Tenn. 1902), cert. denied, Johnson City v. Municipal Trust Co., 194 U.S. 636, 24 S. Ct. 859, 48 L. Ed. 1161, 1904 U.S. LEXIS 805 (1903). But see Johnson City v. Railroad, 100 Tenn. 138, 44 S.W. 670, 1897 Tenn. LEXIS 97 (1897).

NOTES TO DECISIONS

1. Application of Tax.

A tax levied to pay the principal and interest of the indebtedness of the county created by the issuance of its bonds to pay its subscription to the stock of a railroad company cannot be applied to other purposes until that debt is wholly extinguished. Kennedy v. Montgomery County, 98 Tenn. 165, 38 S.W. 1075, 1896 Tenn. LEXIS 215 (1897).

NOTES TO DECISIONS

1. Immunity of Railroad Under Sale.

Where a railroad is exempt from taxation by a provision in its charter, and a suit is instituted by the state to enforce its statutory mortgage and asks for a sale under which terms are to be specified by the court pursuant to statute, and the decree vests in the purchaser all of the rights, privileges and immunities of debtor corporation, the immunity from taxation passes to the purchaser. Knoxville & O. R. R. Co. v. Hicks, 68 Tenn. 442, 1877 Tenn. LEXIS 43 (1877); State v. Nashville, C. & St. L. Ry., 80 Tenn. 583, 1883 Tenn. LEXIS 210 (1883), limited, Memphis v. Phoenix Fire & Marine Ins. Co., 91 Tenn. 566, 19 S.W. 1044, 1892 Tenn. LEXIS 30 (1892); Buchanan v. Knoxville & O.R.R., 71 F. 324, 1895 U.S. App. LEXIS 2620 (6th Cir. 1895).

A grant of immunity from taxation does not pass in suit by state to foreclose lien where the decree merely specifies that the franchise and property of railroad is to be sold, since decree must expressly state that rights, privileges and immunities are included in the sale in order for the immunity from taxation to pass. Wilson v. Gaines, 3 Cooper's Tenn. Ch. 597 (1877), aff'd, 2 Shannon 564, 68 Tenn. 546, 1877 Tenn. LEXIS 46 (1877), aff'd, Wilson v. Gaines, 2 Shannon 564, 68 Tenn. 546, 1877 Tenn. LEXIS 46 (1877), aff'd, 103 U.S. 417, 26 L. Ed. 401, 1880 U.S. LEXIS 2132 (1881); Wilson v. Gaines, 2 Shannon 564, 68 Tenn. 546, 1877 Tenn. LEXIS 46 (1877), aff'd, 103 U.S. 417, 26 L. Ed. 401, 1880 U.S. LEXIS 2132 (1881); Wilson v. Gaines, 103 U.S. 417, 26 L. Ed. 401, 1880 U.S. LEXIS 2132 (1881); Railroad Co. v. County of Hamblen, 102 U.S. 273, 26 L. Ed. 152, 1880 U.S. LEXIS 2036 (Tenn. Nov. 29, 1880); Picard v. East Tenn., Va. & Ga. R.R., 130 U.S. 637, 9 S. Ct. 640, 32 L. Ed. 1051, 1889 U.S. LEXIS 1783 (1889).

NOTES TO DECISIONS

1. Foreclosure Includes Charter.

Where corporation executed mortgage, it may not surrender its charter so as to defeat the rights of the mortgage creditors as to its franchise and property. The purchaser at foreclosure sale is entitled to be invested with the property and franchises, and may file certificate with secretary of state. Briggs v. Clawson Bros., 8 Tenn. App. 251, — S.W.2d —, 1928 Tenn. App. LEXIS 135 (Tenn. Ct. App. 1928).

NOTES TO DECISIONS

1. Effect of Consolidation.

The consolidation of corporations gives the new corporation all the rights of the old corporations and subjects it to all their liabilities. Miller v. Lancaster, 45 Tenn. 514, 1868 Tenn. LEXIS 41 (1868); Knoxville v. Africa, 77 F. 501, 1896 U.S. App. LEXIS 2264 (6th Cir. 1896); Municipal Trust Co. v. Johnson City, 116 F. 458, 1902 U.S. App. LEXIS 4353 (6th Cir. Tenn. 1902), cert. denied, Johnson City v. Municipal Trust Co., 194 U.S. 636, 24 S. Ct. 859, 48 L. Ed. 1161, 1904 U.S. LEXIS 805 (1903).

2. Liability for Debts.

The creation of a new corporation by the purchasers of the property and franchises of the old corporation, or the voluntary organization of a partnership or association of such purchasers under the name of the old corporation, will not render the new entity liable for the debts of the old corporation or entity. Memphis Water Co. v. Magens & Co., 83 Tenn. 37, 1885 Tenn. LEXIS 15 (1885); Bristol Bank & Trust Co. v. Jonesboro Banking & Trust Co., 101 Tenn. 545, 48 S.W. 228, 1898 Tenn. LEXIS 103 (1898).

3. Change of Name.

The mere change of the name of an existing corporation, either simply or by way of consolidation with another corporation, will not affect the liabilities of the corporation. Memphis Water Co. v. Magens & Co., 83 Tenn. 37, 1885 Tenn. LEXIS 15 (1885); Bristol Bank & Trust Co. v. Jonesboro Banking & Trust Co., 101 Tenn. 545, 48 S.W. 228, 1898 Tenn. LEXIS 103 (1898).

NOTES TO DECISIONS

1. Immunity from Taxation Under Consolidation.

Where the capital stock of both the original Tennessee corporations was exempt from taxation, the capital stock of the united or consolidated companies is also exempt where the statute authorizing the union invests the consolidated company with all the powers and privileges of the old corporations. Tennessee v. Whitworth, 117 U.S. 139, 6 S. Ct. 649, 29 L. Ed. 833, 1886 U.S. LEXIS 1821 (1886).

65-10-101. Lien of contractors.

Where any railroad company contracts with any person for the grading of its roadway, the construction or repair of its culverts, bridges, and masonry, the furnishing of cross-ties, the laying of its track, the erection of its depots, platforms, wood or water stations, section houses, machine shops, or other buildings, or for the delivery of material for any of these purposes, or for engineering or superintendence, there shall be a lien upon such railroad, its franchise and property, in favor of the person with whom the railroad company contracts for the performance of the work or the delivery of the materials, to the amount of the debt contracted for such performance or delivery.

Acts 1883, ch. 220, § 1; Shan., § 3570; mod. Code 1932, § 7992; T.C.A. (orig. ed.), § 65-1001.

Cross-References. Lien of subcontractors, laborers, materialmen and other persons, title 65, ch. 10, part 2.

Priority of liens, § 65-10-206.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 55.

65-10-102. Duration of contractors' lien.

The lien shall continue in force for six (6) months after the performance of the work or the delivery of the material, and until the termination of any suit commenced within the time for its enforcement.

Acts 1883, ch. 220, § 1; Shan., § 3571; Code 1932, § 7993; T.C.A. (orig. ed.), § 65-1002.

65-10-103. Enforcement of contractors' lien.

This lien may be enforced by a suit against the railroad company in the circuit or chancery court of the county where the work, or some part thereof, was done, or the material, or some part thereof, was delivered.

Acts 1883, ch. 220, § 2; Shan., § 3572; mod. Code 1932, § 7994; T.C.A. (orig. ed.), § 65-1003.

Cross-References. Priority of liens, § 65-10-206.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 59.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241 (1978).

65-10-104. Pleadings.

The pleading of the plaintiff or complainant shall set out, with reasonable certainty, the work done or the materials furnished, the amount of indebtedness claimed therefor, and the nature and the substance of the contract, and such suit shall be docketed and conducted as other suits in the court.

Acts 1883, ch. 220, § 2; Shan., § 3573; mod. Code 1932, § 7995; T.C.A. (orig. ed.), § 65-1004.

65-10-105. Lien of subcontractors against contractor.

When any principal contractor, by which is meant one who contracts directly with the railroad companies, shall refuse to pay any subcontractor, mechanic, laborer, or other person employed by the principal contractor for the performance of any of such work or the delivery of materials for the purposes provided for in § 65-10-101, such subcontractor, mechanic, laborer, or other person so employed by the principal contractor may elect to give notice, in writing, to the railroad company, setting out the work done or material furnished, and the amount claimed therefor, and, thereupon, the amount that may be due or owing from the railroad company to the principal contractor, not exceeding the sum claimed, shall be bound and liable, in the hands of the railroad company, for the payment of the amount so claimed, and shall constitute a first lien in favor of the claimant, superior to all other liens upon the company's railroad, and shall continue in force for a period of ninety (90) days from the date of service of such notice, and until the termination of any suit commenced within that time to enforce it.

Acts 1883, ch. 220, § 3; Shan., § 3574; mod. Code 1932, § 7996; T.C.A. (orig. ed.), § 65-1005.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 59.

65-10-106. Payment into court by railroad.

If, after notice provided for in § 65-10-105, the principal contractor shall bring suit against the railroad company, the latter may relieve itself by paying into court the amount so claimed, and the person giving such notice shall be summoned to contest the matter with the principal contractor, and such judgment be rendered thereon as the right may appear.

Acts 1883, ch. 220, § 3; Shan., § 3575; Code 1932, § 7997; T.C.A. (orig. ed.), § 65-1006.

65-10-107. Enforcement of lien against contractor.

The claim provided for in § 65-10-105 may be enforced against the railroad company, as garnishee, and the principal contractor, as debtor, in such court or before any judge of the court of general sessions of the county having jurisdiction of the amount claimed.

Acts 1883, ch. 220, § 3; Shan., § 3576; mod. Code 1932, § 7998; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 65-1007.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 59.

65-10-108. Lien of laborer or materialman against subcontractor.

If any subcontractor refuses to pay any mechanic, laborer, or other person employed by such contractor, for the performance of any of the work, or the delivery of material for the purposes provided for in § 65-10-101, such mechanic, laborer, or other person so employed by the subcontractor may elect to give notice, in writing, to the principal contractor, setting out the work done or the material furnished, and the amount claimed therefor; and thereupon the amount that may be due or owing from the principal contractor to the subcontractor, not exceeding the amount of the claim, shall be bound and liable in the hands of the principal contractor, for the amount so claimed, for a period of ninety (90) days from the date of the service of notice upon the principal contractor, or the principal contractor's agent or attorney, and until the termination of any suit commenced within that time for the collection of such claim.

Acts 1883, ch. 220, § 4; Shan., § 3577; mod. Code 1932, § 7999; T.C.A. (orig. ed.), § 65-1008.

Cross-References. Lien of subcontractors, laborers, materialmen and other persons, title 65, ch. 10, part 2.

Law Reviews.

Liens — Priority of Conditional Vendor's Lien Over Warehousemen's Lien, 8 Tenn. L. Rev. 202 (1930).

65-10-109. Enforcement of lien against subcontractor.

The notice provided for in § 65-10-105 shall operate as a first lien in favor of the claimant upon the amount that may be due from the principal contractor to the subcontractor, and may be enforced against the principal contractor as garnishee and the subcontractor as debtor.

Acts 1883, ch. 220, § 4; Shan., § 3578; mod. Code 1932, § 8000; T.C.A. (orig. ed.), § 65-1009.

65-10-110. Payment into court by principal contractor.

The principal contractor may, upon receiving the notice provided for in § 65-10-105, be relieved, if sued, by paying the sum claimed into court, which payment into court shall discharge the principal contractor from liability to the subcontractor for the amount so paid into court; and thereupon the subcontractor shall be summoned to answer the demand of the claimant, and such judgment shall be rendered thereon as the right may appear.

Acts 1883, ch. 220, § 4; Shan., § 3579; Code 1932, § 8001; T.C.A. (orig. ed.), § 65-1010.

65-10-111. Equipment and rolling stock.

1. In any written contract of or for the sale of the railroad equipment or rolling stock, deliverable immediately or subsequently at stipulated periods, by the terms of which the purchase money, in whole or in part, is to be paid in the future, it may be agreed that the title to the property so sold or contracted to be sold shall not pass to or vest in the vendee until the purchase money shall have been fully paid, or that the vendor shall have and retain a lien thereon for the unpaid purchase money, notwithstanding delivery thereof to and possession by the vendee; provided, that the terms of credit for the payment of the purchase money shall not exceed fifteen (15) years from the execution of the contract.
2. In any written contract for the leasing or renting of railroad equipment or rolling stock, it is lawful to stipulate for a conditional sale thereof at the termination of such lease, and to stipulate that the rentals received may, as paid or when paid in full, be applied and treated as purchase money, and that the title of such property shall not vest in such lessee or vendee until the purchase money shall have been paid in full, notwithstanding delivery to and possession by such lessee or vendee, subject, however, to the proviso contained in subsection (a).
3. Every such contract specified in this section shall be good, valid, and effectual, both in law and equity, against all purchasers and creditors; provided, first, the same shall be acknowledged by the vendee or lessee before some officer authorized by law to take acknowledgments of deeds in the form required as to conveyance of real estate; second, such instrument shall be registered in the office of the register of the county in which, at the time of the execution thereof, is situated the principal office of the vendee or lessee in this state; and third, each locomotive engine or car so sold or contracted to be sold or leased as aforementioned shall have the name of the vendor or lessor, or the assignee of such vendor or lessor, plainly placed or marked on each side thereof, or be otherwise marked so as to indicate the ownership thereof.

Acts 1885, ch. 96, §§ 1-3, 5; 1903, ch. 199, § 1; Shan., §§ 3587-3589; Code 1932, §§ 8009-8011; T.C.A. (orig. ed.), §§ 65-1018 — 65-1020; Acts 1991, ch. 360, § 1.

65-10-112. Priority of judgments for timbers, work, or damages.

No railroad company shall have power to give or create any mortgage or other kind of lien on its railway property in this state, which shall be valid and binding against judgments and decrees, and executions therefrom, for timbers furnished and work and labor done on, or for damages done to persons and property in the operation of its railroad in this state.

Acts 1877, ch. 12, § 3; 1877, ch. 72, § 3; Shan., § 1530; Code 1932, § 2587; T.C.A. (orig. ed.), § 65-1021.

Cross-References. Liability for timber cut, § 29-36-102.

Liability of railroad to taxation, § 65-8-108.

Lien of state for construction of underpass or overpass, priority, § 65-11-109.

Priority of liens of contractors, subcontractors, laborers and materialmen, § 65-10-206.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 54.

65-10-113. Lessee holds subject to burdens against lessor.

The lessee of any railroad shall hold such road subject to the liens and liabilities to which it was subject in the hands of the lessor, and be bound for all payments for which the lessor was liable.

Code 1858, § 1123 (deriv. Acts 1857-1858, ch. 8, § 3); Shan., § 1539; Code 1932, § 2609; T.C.A. (orig. ed.), § 65-1022.

Part 2
Subcontractor's Lien Against Railroad

NOTES TO DECISIONS

1. Legislative Purpose.

By legislation of this character it was the intention to require railroads to construct and keep in repair good and sufficient crossings where the tracks of the company are crossed by a public road, the purpose being to make such crossings easy of approach and as safe as possible in cases of emergency. Louisville & N. R. Co. v. State, 137 Tenn. 341, 193 S.W. 113, 1916 Tenn. LEXIS 80 (1917).

2. Duty to Construct and Maintain Crossing.

The phrase “good and sufficient crossing” means one suitable for the ordinary exigencies of travel upon the road at that particular place. Louisville & N. R. Co. v. Evins, 13 Tenn. App. 57, — S.W.2d —, 1930 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1930).

The common law required a railroad to erect and maintain such a crossing as convenience and safety required, and this is the extent of the company's obligation under this section. Louisville & N. R. Co. v. Evins, 13 Tenn. App. 57, — S.W.2d —, 1930 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1930).

Under this section a railroad company is required to keep its crossing in a reasonably safe condition for public travel, the railroad not being an insurer against accidental injury or death. Louisville & N. R. Co. v. Evins, 13 Tenn. App. 57, — S.W.2d —, 1930 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1930).

Where railroad was charged with negligence in maintenance of crossing, and evidence justified verdict against defendant, it was immaterial whether railroad was also guilty of violation of duties at “designated crossing” imposed by § 65-12-108. Powers v. L. & N. R. Co., 183 Tenn. 526, 194 S.W.2d 241, 1946 Tenn. LEXIS 233 (1946).

Violation of this section does not create an additional cause of action for damages arising out of an accident at a railroad crossing, but merely presents an additional ground of negligence. Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954).

While a municipality is under a duty to the public to maintain its streets in a reasonably safe repair, nevertheless railroads having a right of way upon and across such streets have a common law duty to keep in repair so much and such parts of these streets as may be under the control of the railroad and necessary for its operation. Southern R. Co. v. Maples, 201 Tenn. 85, 296 S.W.2d 870, 1956 Tenn. LEXIS 469 (1956).

This section has application even though the highway bridge crossed over a preexisting railroad. Atlantic C. R. Co. v. Smith, 264 F.2d 428, 1959 U.S. App. LEXIS 4318 (6th Cir. Tenn. 1959).

The fact that railroad crossing was located within the corporate limits of a city did not relieve the railroad of its duty to keep the crossing in proper order. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962).

Where public had free access to and use of road maintained by county, road was “public” within meaning of Tennessee law and statutes concerning railroad crossings on public highways or public roads, and railroad was liable for wrongful death if it resulted from railroad's negligence in failing to maintain crossing. Outlaw v. Louisville & N. R. Co., 448 F.2d 1284, 1971 U.S. App. LEXIS 7838 (6th Cir. Tenn. 1971).

3. Obstruction of Crossing.

Under the common law, a railroad company can be indicted for obstructing a public crossing, but the indictment or presentment must conclude “to the common nuisance.” Southern R. Co. v. State, 141 Tenn. 133, 207 S.W. 724, 1918 Tenn. LEXIS 74 (1918).

4. Closing of Crossing.

The question of whether a railway company had a duty to keep a grade crossing in good repair was irrelevant in an action concerning whether the company could be compelled to keep a grade crossing open. Scott County v. Cincinnati, N. O. & Tex. Pac. Ry., 915 F. Supp. 928, 1995 U.S. Dist. LEXIS 20364 (E.D. Tenn. 1995).

5. Street Railways.

A street railroad company is bound, under the common law, to keep its entire roadbed, to the ends of its ties, and its crossings, in repair, so as not to obstruct travel across its road or longitudinally upon it, and this duty is a continuing one, whether the charter so expressly requires it or not. Memphis, P. P. & B. R. Co. v. State, 87 Tenn. 746, 11 S.W. 946, 1889 Tenn. LEXIS 23 (1889).

A street railroad company failing to repair its roadbed, and thereby obstructing travel, is indictable for maintaining a nuisance, and, upon failure to abate the nuisance, the obstructions may be removed by order of the court, after a conviction under the indictment. Memphis, P. P. & B. R. Co. v. State, 87 Tenn. 746, 11 S.W. 946, 1889 Tenn. LEXIS 23 (1889).

Misled the jury into the conclusion that, if the defendant was guilty of any negligence, its liability would follow without regard to the plaintiff's concurrent negligence. Nashville R. & L. Co. v. Dungey, 128 Tenn. 587, 163 S.W. 802, 1913 Tenn. LEXIS 73 (1913).

Collateral References.

Constitutional power to compel railroad company to relocate or reconstruct highway crossing or to pay or contribute to expense thereof. 55 A.L.R. 660, 62 A.L.R. 815, 109 A.L.R. 768.

Federal control as affecting statutory duty to maintain bridge. 19 A.L.R. 693, 52 A.L.R. 296.

Governmental liability for failure to reduce vegetation obscuring view at railroad crossing or at street or highway intersection. 22 A.L.R.4th 624.

Liability of municipality for injury due to condition of part of street occupied by street railway. 54 A.L.R. 1291.

Liability of street railway company for injury due to condition of part of street occupied by street railway. 54 A.L.R. 1291.

Piers, pillars, or abutments within street or highway, at crossing, right of railroad to construct and maintain. 62 A.L.R. 1519.

Prohibition to control action of administrative officers as to construction of railroad crossing or viaduct. 115 A.L.R. 23, 159 A.L.R. 627.

Railroad company's liability for injury or death of pedestrian due to condition of surface of crossing. 64 A.L.R.2d 1199.

Railroad's liability to owner or occupant of motor vehicle for accident allegedly resulting from defective condition of road surface at crossing. 91 A.L.R.2d 10.

Stone or other object on surface of highway thrown by or from passing vehicle, liability for injury to person or damage to property caused by. 115 A.L.R. 1500.

Street railway company's liability for injury by defect in highway to person approaching to board streetcar. 75 A.L.R. 294.

NOTES TO DECISIONS

1. Construction.

The effect of the proviso of this section is only to relieve a railroad from criminal liability and does not relieve the railroad of its common-law obligation to the traveling public to maintain and repair railroad crossings within cities and towns, and the railroad is liable in civil action for damages to a person injured as a proximate result of its failure to perform such duty. Southern R. Co. v. Maples, 201 Tenn. 85, 296 S.W.2d 870, 1956 Tenn. LEXIS 469 (1956).

NOTES TO DECISIONS

1. Construction.

The statute is supplementary of and auxiliary to the older statute compiled in §§ 65-11-101, 65-11-102, and does not, by implication, repeal or suspend it. The later statute adds to the broadly stated requirement in the former statute a specification defining how a particular part of the crossing shall be constructed. Louisville & N. R. Co. v. State, 128 Tenn. 172, 159 S.W. 601, 1913 Tenn. LEXIS 36 (1913); Louisville & N. R. Co. v. State, 137 Tenn. 341, 193 S.W. 113, 1916 Tenn. LEXIS 80 (1917).

This statute requires the railroad to make the public road at a railroad crossing level for the distance of 10 feet on each side of the rails, and between the rails, and to keep the same in repair, and is not complied with by merely bringing the public roadway to a level with the rails at the point of contact with the rails. Louisville & N. R. Co. v. State, 137 Tenn. 341, 193 S.W. 113, 1916 Tenn. LEXIS 80 (1917).

2. Grade.

“Grading” includes filling as well as cutting, and technically means the reducing of the earth's surface to a given line fixed as the grade, and may include filling or excavating, or both. Louisville & N. R. Co. v. State, 137 Tenn. 341, 193 S.W. 113, 1916 Tenn. LEXIS 80 (1917).

The term “grade,” when used in reference to streets, has two distinct meanings; and, by the first meaning, it signifies the line of the street's inclination from the horizontal; and, by its second meaning, it signifies a part of the street inclined from the horizontal; that is, it sometimes signifies the line established to guide future construction, and at other times, the street wrought to the line; and when the term “grade” is used in a decree laying out a street of a certain width, and prescribing the grade along its center line, refers to the physical condition of the street when its construction is complete. Louisville & N. R. Co. v. State, 137 Tenn. 341, 193 S.W. 113, 1916 Tenn. LEXIS 80 (1917).

3. “Crossing” Defined.

The word “crossing,” as applied to the intersection of a common highway and a railroad, means the entire structure, including the necessary approaches, though a part may be outside of the railroad's right of way. Louisville & N. R. Co. v. State, 128 Tenn. 172, 159 S.W. 601, 1913 Tenn. LEXIS 36 (1913); Louisville & N. R. Co. v. State, 137 Tenn. 341, 193 S.W. 113, 1916 Tenn. LEXIS 80 (1917).

Negligence in failing to maintain a sufficient crossing does not render railroad company liable when driver of truck was guilty of contributory negligence in attempting to cross in front of an approaching train observed by him or that should have been seen. Cincinnati, N. O. & T. P. R. Co. v. Galloway, 59 F.2d 664, 1932 U.S. App. LEXIS 3439 (6th Cir. Tenn. 1932).

NOTES TO DECISIONS

1. Construction of Road Across Highway.

A railroad company, in constructing its road over or across a public highway, must, if possible, construct its road without any inconvenience to the public; but if it cannot be done without some inconvenience, it must be done with the least possible inconvenience. If a bridge or substituted road be necessary to prevent the obstruction, the railroad company must build it immediately or in a reasonable time, and cannot delay it until its road is completed. The company must so use its own rights as not to injure or take away the rights of others. These are the rules under the common law, and the established rules, whether the obstruction of the highway be expressly prohibited in the charter or general statutes. Louisville & N. R. Co. v. State, 40 Tenn. 523, 1859 Tenn. LEXIS 150 (1859); Dyer County v. Railroad, 87 Tenn. 712, 11 S.W. 943, 1889 Tenn. LEXIS 21 (1889); Memphis, P. P. & B. R. Co. v. State, 87 Tenn. 746, 11 S.W. 946, 1889 Tenn. LEXIS 23 (1889); Harriman v. Southern Ry., 111 Tenn. 538, 82 S.W. 213, 1903 Tenn. LEXIS 44 (1903).

The railroad company and its successors must, if not relieved by statute, not only restore the public road, but must erect and maintain perpetually all structures and keep up all repairs made necessary by such crossing, for the safety and convenience of public travel. Dyer County v. Railroad, 87 Tenn. 712, 11 S.W. 943, 1889 Tenn. LEXIS 21 (1889); Memphis, P. P. & B. R. Co. v. State, 87 Tenn. 746, 11 S.W. 946, 1889 Tenn. LEXIS 23 (1889); Harriman v. Southern Ry., 111 Tenn. 538, 82 S.W. 213, 1903 Tenn. LEXIS 44 (1903); Louisville & N.R.R. v. United States Iron Co., 118 Tenn. 194, 101 S.W. 414, 1906 Tenn. LEXIS 90 (Tenn. Dec. 1906); City of Chattanooga v. Southern Ry., 128 Tenn. 399, 161 S.W. 1000, 1913 Tenn. LEXIS 57 (1913).

2. Obstruction of Public Highway.

Railroad companies are indictable for obstructing public roads, highways, and streets. Louisville & N. R. Co. v. State, 40 Tenn. 523, 1859 Tenn. LEXIS 150 (1859); Memphis, P. P. & B. R. Co. v. State, 87 Tenn. 746, 11 S.W. 946, 1889 Tenn. LEXIS 23 (1889); State v. Railroad, 91 Tenn. 445, 19 S.W. 229, 1892 Tenn. LEXIS 12 (1892).

The acquittal of the railroad company of the criminal charge of maintaining a nuisance in the public road at its crossing is not available, as res judicata, in a suit by the county to recover of the railroad company the costs of removing the obstruction constituting the nuisance, by rebuilding a dilapidated and dangerous bridge for the county road crossing over the railroad. Dyer County v. Railroad, 87 Tenn. 712, 11 S.W. 943, 1889 Tenn. LEXIS 21 (1889).

3. Recovery by County for Rebuilding Bridge.

When the railroad company fails or refuses to perform its duty touching structures and repairs at its intersection with a public road, the county may have the work done and recover the reasonable costs thereof from the railroad company. The railroad company will be liable to the county for a new bridge erected by county, shown to be such as the necessities of public travel demand, and substantially the same as the one originally erected by the company, though not exactly the same structure that the company would have erected had it undertaken the task. Dyer County v. Railroad, 87 Tenn. 712, 11 S.W. 943, 1889 Tenn. LEXIS 21 (1889).

NOTES TO DECISIONS

1. Municipal Ordinances.

Municipal ordinance requiring construction of automatic signals and crossing gates at several railroad and street intersections at expense of railroad company was not invalid as being inconsistent with and repugnant to §§ 65-11-105 and 65-12-108 since the ordinance simply required more than the statutes. Southern R. Co. v. Knoxville, 223 Tenn. 90, 442 S.W.2d 619, 1968 Tenn. LEXIS 504 (1968), cert. denied, 396 U.S. 1002, 90 S. Ct. 551, 24 L. Ed. 2d 494, 1970 U.S. LEXIS 3286 (1970), cert. denied, Southern R. Co. v. Knoxville, 396 U.S. 1002, 90 S. Ct. 551, 24 L. Ed. 2d 494, 1970 U.S. LEXIS 3286 (1970).

Collateral References.

Absence, improper location, or insufficiency of signs warning approaching travelers of presence of crossing, responsibility for accident as affected by. 93 A.L.R. 218.

Failure of signaling device at crossing to operate, as affecting railroad company's liability. 90 A.L.R.2d 350.

NOTES TO DECISIONS

1. Right of Railroad to Challenge Order of Commission.

Where a railroad challenged the validity of an order of the commission requiring the railroad to bear one half the cost of building an overpass over the railroad's tracks, the supreme court of Tennessee erred in refusing to consider the facts offered by the railroad for the purpose of showing the order arbitrary and unreasonable. Nashville, C. & S. L. Railway v. Walters, 294 U.S. 405, 55 S. Ct. 486, 79 L. Ed. 949, 1935 U.S. LEXIS 269 (1935).

2. City Ordinance Requiring Relocation of Facilities.

A city ordinance requiring a telephone company to relocate at its own expense its facilities where a grade crossing elimination project was to be carried out was invalid as an attempt by the city to exercise, under its police power, a right to require the company to pay a part of the expense of eliminating the grade crossing; and such exercise of police power is in direct conflict with the legislative policy of the state as shown by §§ 65-11-107 — 65-11-112, which provide for the elimination of such grade crossings through the state highway department. Southern Bell Tel. & Tel. Co. v. Nashville, 35 Tenn. App. 207, 243 S.W.2d 617, 1951 Tenn. App. LEXIS 63 (Tenn. Ct. App. 1951).

City could not by contract and resolution authorize state to eliminate grade crossing on street subject to jurisdiction of city. Wilkey v. Cincinnati, N. O. & T. P. R. Co., 47 Tenn. App. 556, 340 S.W.2d 256, 1960 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1960).

3. Elimination of One Grade Crossing and Substitution of Another.

When, acting alone or in conjunction with others, the department has eliminated an existing grade crossing by substituting another of its selection and has re-routed the state highway over the substituted crossing, the powers conferred by the statute are exhausted and jurisdiction over the old route reverts to local authority. Wilkey v. Cincinnati, N. O. & T. P. R. Co., 47 Tenn. App. 556, 340 S.W.2d 256, 1960 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1960).

4. Streets and Highways Not Part of State System.

This section does not confer power to eliminate grade crossings on streets and highways no longer a part of the state highway system. Wilkey v. Cincinnati, N. O. & T. P. R. Co., 47 Tenn. App. 556, 340 S.W.2d 256, 1960 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1960).

Collateral References.

Constitutional power to compel railroad to relocate its tracks to abolish grade crossing. 55 A.L.R. 660, 62 A.L.R. 815, 109 A.L.R. 768.

Liability of railroad for injury or damage resulting from motor vehicle striking bridge or underpass because of insufficient vertical clearance. 67 A.L.R.2d 1364.

Municipal corporation's power to require railroad to eliminate grade crossings. 35 A.L.R. 1322, 36 A.L.R. 1122.

NOTES TO DECISIONS

1. City Ordinance Requiring Relocation of Facilities.

City could not by contract and resolution authorize state to eliminate grade crossing on street subject to jurisdiction of city. Wilkey v. Cincinnati, N. O. & T. P. R. Co., 47 Tenn. App. 556, 340 S.W.2d 256, 1960 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1960).

2. Elimination of One Grade Crossing and Substitution of Another.

When, acting alone or in conjunction with others, the department has eliminated an existing grade crossing by substituting another of its selection and has re-routed the state highway over the substituted crossing, the powers conferred by the statute are exhausted and jurisdiction over the old route reverts to local authority. Wilkey v. Cincinnati, N. O. & T. P. R. Co., 47 Tenn. App. 556, 340 S.W.2d 256, 1960 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1960).

3. Streets and Highways Not Part of State System.

This section does not confer power to eliminate grade crossings on streets and highways no longer a part of the state highway system. Wilkey v. Cincinnati, N. O. & T. P. R. Co., 47 Tenn. App. 556, 340 S.W.2d 256, 1960 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1960).

NOTES TO DECISIONS

1. Elimination of Grade Crossings.

Order of state highway department eliminating grade crossing of railroad and requiring railroad to pay half the expense was not invalid on the ground that action was for the primary purpose of connecting highway involved with highways in other states even though federal government contributed to cost of construction of highway including elimination of grade crossings, since state highway department was authorized under the police power to designate main traveled highways and locate and alter grades. Nashville, C. & S. L. Ry. v. Baker, 167 Tenn. 470, 71 S.W.2d 678, 1933 Tenn. LEXIS 62 (1934), rev'd, Nashville, C. & S. L. Railway v. Walters, 294 U.S. 405, 55 S. Ct. 486, 79 L. Ed. 949, 1935 U.S. LEXIS 269 (1935), dismissed, Nashville C. & St. L. R. Co. v. Herndon, 55 S. Ct. 87, 293 U.S. 518, 79 L. Ed. 632, 1934 U.S. LEXIS 36 (1934), rev'd on other grounds, Nashville, C. & S. L. Railway v. Walters, 294 U.S. 405, 55 S. Ct. 486, 79 L. Ed. 949, 1935 U.S. LEXIS 269 (1935).

2. Cost of Overhead Crossing.

Where trestle of railroad holding right of way barred further extension of city streets, the city was required to bear the cost of overhead crossing. Memphis v. Southern R. Co., 167 Tenn. 181, 67 S.W.2d 552, 1933 Tenn. LEXIS 24 (1934).

NOTES TO DECISIONS

1. Maintenance of Overpass.

If railroad undertakes not only to construct but to maintain and care for an overpass, it assumes a duty to the traveling public to keep the overpass and its approaches in reasonably safe condition, and where complaint alleged dangerous condition of railing of approach of overpass over defendant's tracks it was error to dismiss the complaint. Holder v. St. Louis-San Francisco R. Co., 172 F.2d 217, 1949 U.S. App. LEXIS 2674 (6th Cir. Tenn. 1949).

NOTES TO DECISIONS

1. Refusal to Accept Cash Fare.

Where lady passenger paid cash fare to conductor on going trip from a station which had no agent, but same conductor refused to accept cash fare on return trip, since station from which passenger came on return trip had an agent, and ejected the passenger, the railroad was not liable in damages for ejection. Southern R. Co. v. Pickle, 138 Tenn. 238, 197 S.W. 675, 1917 Tenn. LEXIS 26 (1917).

Collateral References.

Acceptance by one conductor of invalid ticket or pass as affecting liability for expulsion of passenger by succeeding conductor. 88 A.L.R. 763.

Carrier's liability for ejection or threatened ejection from train not stopping at passenger's station. 36 A.L.R. 1018.

Duty on ejection of passenger or child for refusal to pay child's fare. 1 A.L.R. 1454.

Ejection of child for failure to pay fare as ejection of custodian. 1 A.L.R. 1453.

Evidence of right to free transportation on public conveyance. 3 A.L.R. 387.

Forwarder, discrimination against. 141 A.L.R. 932.

Jurisdiction of state court of action involving discrimination in relation to interstate shipment. 64 A.L.R. 333.

Liability of railroad company for acts of employees in ejecting trespassers from train. 72 A.L.R. 536.

Loss or theft of passenger's ticket or other token of right to transportation as affecting rights and duties of carrier and passenger. 127 A.L.R. 222.

Reentering car or train after ejection. 5 A.L.R. 352.

Special services or facilities afforded by shipper as a factor in carrier's rates. 25 A.L.R. 191.

Waiver by carrier of rights under interstate shipment as constituting unlawful discrimination among shippers. 135 A.L.R. 611.

NOTES TO DECISIONS

1. Construction of Statute.

The provisions of this act are merely declaratory of the common law duties of railroads. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962).

The 1959 amendment to this section converted causes of actions for violation of the Statutory Precautions Act into mere common-law rights of action. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962).

Under the 1959 amendment, violation of § 65-12-108 is merely negligence per se with the burden of proof placed on the plaintiff. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962); Union R. Co. v. Jinks, 55 Tenn. App. 491, 402 S.W.2d 495, 1965 Tenn. App. LEXIS 263 (Tenn. Ct. App. 1965).

2. Effect of Amendment.

The 1959 act which repealed former § 65-1210 and amended this section and § 65-12-109 was not applicable to suits brought against railroad that arose out of accident that occurred before enactment of the act although suits were commenced after the act went into effect because § 1-3-101 forbids the repeal of a statute to affect any right which accrued or proceeding which was commenced under the repealed statute and the act before it was amended provided plaintiffs with substantive rights that were neither destroyed or impaired by the 1959 act. Southern R. Co. v. Miller, 285 F.2d 202, 1960 U.S. App. LEXIS 3074, 85 A.L.R.2d 842 (6th Cir. Tenn. 1960).

Where, in 1959, § 65-12-109 was amended so as to make contributory negligence and lack of proximate cause defenses to an action based on the Statutory Precautions Act, although the trial took place after the amendment, such amendment was not applicable, since the accident occurred in 1958. Gilreath v. Southern R. Co., 323 F.2d 158, 1963 U.S. App. LEXIS 4124 (6th Cir. Tenn. 1963).

3. Scope of Statute.

Federal Railway Safety Act, 49 U.S.C. § 20106, does not preempt T.C.A. § 65-12-108, which requires a train to sound its whistle or bell on approaching a public crossing. Lewis v. Norfolk S. Ry. Co., 618 F. Supp. 2d 833, 2008 U.S. Dist. LEXIS 46247 (W.D. Tenn. June 11, 2008).

4. —Trespassers.

Fact that person operating machine near railway roadway may have been a trespasser on the roadway did not relieve railroad of duty not to cause injury to him. Belcher v. Tennessee C. R. Co., 214 Tenn. 74, 377 S.W.2d 928, 1964 Tenn. LEXIS 451 (1964).

5. Pleading.

The 1959 amendment to § 65-12-109 converted causes of action for violation of the Statutory Precautions Act to mere common law rights of action so that it is no longer necessary to have a separate count alleging violation of the statute in addition to the common law count. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962).

Plaintiff alleging violation of the statute cannot plead absence of proximate contributory negligence on his part. Belcher v. Tennessee C. R. Co., 214 Tenn. 74, 377 S.W.2d 928, 1964 Tenn. LEXIS 451 (1964).

6. Contributory Negligence.

Since the 1959 amendment, violations of the Statutory Precautions Act constitute merely negligence per se and the defense of contributory negligence is available just as in other cases. Union R. Co. v. Jinks, 55 Tenn. App. 491, 402 S.W.2d 495, 1965 Tenn. App. LEXIS 263 (Tenn. Ct. App. 1965).

Driver of automobile who had unobstructed view of railroad track was guilty of proximate contributory negligence so as to bar recovery in suit arising out of collision of automobile and train even though engineer may have failed to comply with statutory precautions. Union R. Co. v. Jinks, 55 Tenn. App. 491, 402 S.W.2d 495, 1965 Tenn. App. LEXIS 263 (Tenn. Ct. App. 1965).

Proximate contributory negligence was a bar to both a common-law cause of action based on negligence and to a negligence action under the Statutory Precautions Act. Flinchum v. Clinchfield R. Co., 460 F.2d 252, 1972 U.S. App. LEXIS 9327 (6th Cir. Tenn. 1972), cert. denied, 409 U.S. 1044, 93 S. Ct. 541, 34 L. Ed. 2d 494, 1972 U.S. LEXIS 459 (1972), cert. denied, Flinchum v. Clinchfield R. Co., 409 U.S. 1044, 93 S. Ct. 541, 34 L. Ed. 2d 494, 1972 U.S. LEXIS 459 (1972).

Where the proximate cause of the accident is the negligence of the plaintiff driver, he is barred from recovery by contributory negligence as a matter of law even in the event of negligence by the defendant railroad. Westbrook v. Illinois C. G. Railroad, 688 S.W.2d 453, 1985 Tenn. App. LEXIS 2630 (Tenn. Ct. App. 1985).

Plaintiff was held to be contributorily negligent as a matter of law for running into the side of a moving train at night at a crossing with which the plaintiff was familiar, which was marked by a crossbuck, and which had streetlights on either side of the crossing. Westbrook v. Illinois C. G. Railroad, 688 S.W.2d 453, 1985 Tenn. App. LEXIS 2630 (Tenn. Ct. App. 1985).

7. Precautions at Public Crossings.

8. —Construction of Statutory Provisions.

In action by plaintiff injured in collision with train at crossing where it was shown that there was a large sign at the crossing on which the words “railroad crossing” were printed in large letters even though it did not appear whether it was the standard railroad crossing sign adverted to in § 65-11-105 or whether either defendant railroad or proper public official erected it, defendant railroad cannot escape duties invoked under subsection two of this section by claiming sign failed to meet the statutory requirements. Bell v. Cincinnati, N. O. & T. P. R. Co., 205 F. Supp. 781, 1962 U.S. Dist. LEXIS 3865 (E.D. Tenn. 1962).

Where the record discloses no evidence that the crossing in question had been duly designated for statutory precautions as required by this section, failure to comply with this section cannot be considered. Prater v. Louisville & N. R. Co., 59 Tenn. App. 82, 438 S.W.2d 68, 1968 Tenn. App. LEXIS 330 (Tenn. Ct. App. 1968).

Plaintiffs were not permitted to allege as an act of negligence any failure of the defendant railroad to establish and maintain adequate warning signs, devices or other safety appliances because the railroad was not required by Tennessee law to erect warning signs at crossings; that was the function of the overseers of public roads. Harper v. Monteagle Inn, Inc., 498 F. Supp. 913, 1978 U.S. Dist. LEXIS 18118 (E.D. Tenn. 1978).

9. — —Municipal Ordinance.

Municipal ordinance requiring construction of automatic signals and crossing gates at several railroad and street intersections at expense of railroad company was not invalid as being inconsistent with and repugnant to § 65-11-105 and this section since the ordinance simply required more than the statutes. Southern R. Co. v. Knoxville, 223 Tenn. 90, 442 S.W.2d 619, 1968 Tenn. LEXIS 504 (1968), cert. denied, 396 U.S. 1002, 90 S. Ct. 551, 24 L. Ed. 2d 494, 1970 U.S. LEXIS 3286 (1970), cert. denied, Southern R. Co. v. Knoxville, 396 U.S. 1002, 90 S. Ct. 551, 24 L. Ed. 2d 494, 1970 U.S. LEXIS 3286 (1970).

10. Precautions upon Approaching Cities and Towns.

11. —Cities, Towns and Trains Covered.

Since former subdivision (3) (deleted by amendment) did not apply to accidents outside corporate limits of cities and towns, demurrer was properly sustained to count in declaration alleging violation of such subsection where declaration showed on its face that accident occurred outside corporate limits. Belcher v. Tennessee C. R. Co., 214 Tenn. 74, 377 S.W.2d 928, 1964 Tenn. LEXIS 451 (1964).

12. Prevention of Accidents — If Obstruction on Track.

13. —Pleading.

Count in declaration which in effect alleged that bucket at end of tractor working along railway was an obstruction on roadway and that defendant railroad failed to observe precautions as required by subdivision (3) and breached duty owed to operator of the machine and that as a proximate result thereof he was injured stated a cause of action. Belcher v. Tennessee C. R. Co., 214 Tenn. 74, 377 S.W.2d 928, 1964 Tenn. LEXIS 451 (1964).

14. —Evidence.

Where evidence shows that plaintiff riding in truck and driver saw and heard train in sufficient time to stop if brakes had not failed, that there was good visibility for the train crew, that the train crew was keeping a lookout and that the brakes on the train where applied immediately after the truck appeared on the tracks, there was no evidence to support a violation of this section. Prater v. Louisville & N. R. Co., 59 Tenn. App. 82, 438 S.W.2d 68, 1968 Tenn. App. LEXIS 330 (Tenn. Ct. App. 1968).

15. Care Required of Streetcars.

Streetcar companies must exercise such care and caution for the purpose of avoiding accidents and endangering property and persons as reasonable prudence will suggest. Memphis C. R.R. Co. v. Logue, 81 Tenn. 32, 1884 Tenn. LEXIS 5 (1884).

Decisions Prior to 1959 Amendment

Note.  Prior to the 1959 amendment the sign required to be erected in subsection (1) was to be erected by the “overseer” of the public road and under § 65-12-109 the railroad was responsible for all damages when failing to comply regardless of negligence but under former § 65-1210 was not responsible if it complied. With these exceptions the following cases would seem to apply to the present section.

1. Matters Pertaining to Statute as a Whole.

2. —Construction of Statute.

It was manifest that all the provisions in this section and § 65-12-109 were to be taken as a whole, and considered together. East T. & V. R.R. Co. v. Swaney, 73 Tenn. 119, 1880 Tenn. LEXIS 95 (1880); Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912). See also Memphis & C.R.R. v. Scott, 87 Tenn. 494, 11 S.W. 317 (1889).

The provisions of the statute embraced in subdivision (2), as well as those in subsection (3) (deleted by amendment), are not concurrent with, or declaratory of, the common law, but wholly statutory. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907).

The supreme court knows, as a matter of history, that when the provisions of the Code were made, the steam railroad had not been developed to the present high state of perfection, and that the wood fire engines made much less speed than engines do now. Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S.W. 437, 1918 Tenn. LEXIS 59 (1918).

While this section and § 65-12-109 are in derogation of the common law, they are also remedial in character and are entitled to a construction which will not defeat the purposes had in mind by the general assembly at the time of their enactment. Stem v. Nashville I. Ry., 142 Tenn. 494, 221 S.W. 192, 1919 Tenn. LEXIS 77 (1919).

In construing this section, the true intent of the general assembly should be carried out; but the statute should not be enlarged by implication. Gordon v. Tennessee C. R. Co., 167 Tenn. 302, 69 S.W.2d 611, 1933 Tenn. LEXIS 41 (1934).

This statute is in the nature of a penal regulation, for safety purposes, and the failure to observe the statute and injury following, creates liability. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

Failure to observe statutory precautions fixed absolute liability upon the railroad. Nashville, C. & S. L. Ry. v. Smith, 33 Tenn. App. 45, 228 S.W.2d 495, 1949 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1949).

3. —Common Law.

The rights and liabilities of a railroad company in this state in regard to accidental injuries to persons or property as they existed at common law have generally been merged into statutory regulations by which those rights and liabilities are clearly defined. Southern R. Co. v. Noah, 180 Tenn. 532, 176 S.W.2d 826, 1944 Tenn. LEXIS 319 (1944).

Evidence of noncompliance with statute is not admissible under common-law count. Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954).

4. —Statutory Precautions.

The statute is imperative in its requirements. Nashville & C. R. R. Co. v. Thomas, 52 Tenn. 262, 1871 Tenn. LEXIS 260 (1871); Hill v. Louisville & N. R. Co., 56 Tenn. 823, 1872 Tenn. LEXIS 210 (1872); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911); Southern Ry. v. Harris, 9 Tenn. App. 589, 1929 Tenn. App. LEXIS 115 (1929).

Each and all of the precautions (except those required of overseers of public roads, by subdivision (1)) are required to be observed by the railroad employees in the operation of engines and trains; but no correlative duty to observe any precautions whatever to carry out the purpose of this legislation is laid upon a person whose “person, animal, or other obstruction appears upon the road.” Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912).

The liability created by this statute is absolute, and not dependent upon proof that the injury resulted from failure to observe the statutory precaution. Southern R. Co. v. Koger, 219 F. 702, 1915 U.S. App. LEXIS 1660 (6th Cir. Tenn. 1915), cert. denied, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915), cert. denied, Southern R. Co. v. Koger, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915).

The railroad would not be exonerated from liability if it had observed all the statutory precautions after the decedent's wagon appeared on the railroad track in a position to be struck by the nearing train, where it had previously failed to comply with the requirements of this statute, by its failure to sound the bell or whistle on approaching the crossing, for all the precautions must be complied with. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

This statute is mandatory, and the failure to comply with it is negligence, and renders the defendant railroad company liable for damages. Tennessee C. R. Co. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225, 1920 Tenn. LEXIS 22 (1920).

The statute is “imperative and mandatory” and demands absolute obedience to its provisions when possible, whether seemingly necessary or not; and the impossibility to stop the train before colliding with the obstruction does not excuse nonobservance of the statutory precautions as far as observance is possible. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

The language of this section is explicit and certain, the railroad must show strict compliance with the statute to absolve itself of negligence and even contributory negligence on the part of a person injured does not excuse a strict compliance. Majestic v. Louisville & N. R. Co., 147 F.2d 621, 1945 U.S. App. LEXIS 2180 (6th Cir. Tenn. 1945).

The provisions of the statute are imperative and mandatory and require absolute obedience and this is true regardless of whether compliance appears to be either necessary or effective to prevent an accident. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

5. — —Effect of Proximate Cause.

The utmost care and diligence is required of railroad companies to prevent accidents; the defense that all effort to avoid the accident would have been ineffectual will not be tolerated for the protection of the company; the injunctions of the law upon them are peremptory. The sound of the whistle might arouse a person sleeping upon the track, or by a checking of the speed, he might be enabled to save himself in an instant. East T. & G. R. Co. v. St. John, 37 Tenn. 524, 1858 Tenn. LEXIS 55 (1858); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Louisville & N.R.R. v. Womack, 173 F. 752, 1909 U.S. App. LEXIS 5102 (6th Cir. 1909); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911); Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912).

A railroad company is responsible for the damages occasioned by, or resulting from, the accident or collision, unless it shows that the statutory precautions were performed; and the fact that the accident or collision would have occurred had the precautions been performed will not relieve the railroad company from the performance thereof, or from the liability for the damages resulting from the accident. Cases of hardship and absurdity may occur from such construction of the statute, but the language is explicit and certain, and the construction is inevitable. Louisville & N. R. Co. v. Burke, 46 Tenn. 45, 1868 Tenn. LEXIS 68 (1868), overruled, Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871). See Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Nashville & C. R. R. Co. v. Thomas, 52 Tenn. 262, 1871 Tenn. LEXIS 260 (1871); Nashville & C.R.R. v. Smith, 53 Tenn. 174, 1871 Tenn. LEXIS 339 (Tenn. Sep. 30, 1871); Louisville & N. R. Co. v. Connor, 56 Tenn. 19, 1871 Tenn. LEXIS 423 (1871); Hill v. Louisville & N. R. Co., 56 Tenn. 823, 1872 Tenn. LEXIS 210 (1872); Memphis & C.R.R. v. Smith, 56 Tenn. 860, 1872 Tenn. LEXIS 214 (1872); Railroad v. Walker, 58 Tenn. 383, 1872 Tenn. LEXIS 271 (1872), criticized, Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Chesapeake, O. & S.W.R.R. v. Foster, 88 Tenn. 671, 13 S.W. 694 (1890); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909).

Compliance with statute will not be excused though the jury may be of opinion that such observance could not have prevented the accident. Louisville & N. R. Co. v. Connor, 56 Tenn. 19, 1871 Tenn. LEXIS 423 (1871); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911); Southern R. Co. v. Koger, 219 F. 702, 1915 U.S. App. LEXIS 1660 (6th Cir. Tenn. 1915), cert. denied, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915), cert. denied, Southern R. Co. v. Koger, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915).

The statute does not brook the slightest speculation upon things that are probable or possible, either by the courts or by the company's agents, but demands an absolute obedience to its provisions, whether they seem to be necessary or not. Hill v. Louisville & N. R. Co., 56 Tenn. 823, 1872 Tenn. LEXIS 210 (1872); Chesapeake, O. & S.W.R.R. v. Foster, 88 Tenn. 671, 13 S.W. 694 (1890); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900). But see Louisville & N.R.R. v. Truett, 111 F. 876, 1901 U.S. App. LEXIS 4441 (6th Cir. 1901); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911).

The statute is imperative, and the breach of it gives a right of action for injuries inflicted on the occasion, whether the nonobservance of the statute was the proximate cause of the accident or not. Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900). See also Collins v. East T., V. & G. R. Co., 56 Tenn. 841, 1872 Tenn. LEXIS 212 (1872); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Howard & Herrin v. Nashville, C. & S. L. R. Co., 3 Tenn. App. 174, — S.W. —, 1926 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1926).

Violation of section gives a cause of action for personal injuries even though the violation is not the proximate cause of the accident. Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954); Louisville & N. R. Co. v. Farmer, 220 F.2d 90, 1955 U.S. App. LEXIS 3307 (6th Cir. Tenn. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955), cert. denied, Farmer v. Louisville & N. R. Co., 361 U.S. 840, 80 S. Ct. 83, 4 L. Ed. 2d 79, 1959 U.S. LEXIS 531 (1959).

6. — —Burden of Proof.

When the statute is applicable, the burden of proof rests upon the railroad company to show affirmatively due observance of the required statutory precautions, or that such observance was impossible, without its default, and that it was guilty of no negligence, and that the accident was unavoidable, in order to avoid liability for damages resulting from the accident. Nashville, C. & S. L. Ry. v. Smith, 33 Tenn. App. 45, 228 S.W.2d 495, 1949 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1949).

7. — —Unavoidable Accident.

It constituted no defense to prove that the accident and injury would have occurred, even if the precautions had been observed. Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Tennessee Cent. R.R. v. Morgan, 132 Tenn. 1, 175 S.W. 1148, 1914 Tenn. LEXIS 73 (1914), questioned, 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962). See also Artenberry v. Railroad, 103 Tenn. 266, 52 S.W. 878, 1899 Tenn. LEXIS 103 (1899); Louisville & N. R. Co. v. Ross, 2 Tenn. App. 384, 1926 Tenn. App. LEXIS 35 (1926); Southern Ry. v. Harris, 9 Tenn. App. 589, 1929 Tenn. App. LEXIS 115 (1929); Union Traction Co. v. Todd, 16 Tenn. App. 200, 64 S.W.2d 26, 1933 Tenn. App. LEXIS 3 (1933); Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954).

The onus of the statute is lifted when the railroad shows it had done all that it was required to do thereunder, and that the accident was unavoidable. But, when impossibility and unavoidableness arise out of the default of the railroad, liability still exists. Majestic v. Louisville & N. R. Co., 147 F.2d 621, 1945 U.S. App. LEXIS 2180 (6th Cir. Tenn. 1945); Louisville & N. R. Co. v. Farmer, 220 F.2d 90, 1955 U.S. App. LEXIS 3307 (6th Cir. Tenn. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955), cert. denied, Farmer v. Louisville & N. R. Co., 361 U.S. 840, 80 S. Ct. 83, 4 L. Ed. 2d 79, 1959 U.S. LEXIS 531 (1959).

8. — —Unreasonable Application.

A case will not be included within the universality of language used in this statute when to do so will in no conceivable way aid the purpose of the statute or advance the remedy and will involve an entirely unreasonable and improbable legislative intent. Southern R. Co. v. Matthews, 29 F.2d 52, 1928 U.S. App. LEXIS 2610 (6th Cir. Tenn. 1928), cert. denied, 279 U.S. 844, 49 S. Ct. 264, 73 L. Ed. 989, 1929 U.S. LEXIS 178 (1929), cert. denied, Matthews v. Southern R. Co., 279 U.S. 844, 49 S. Ct. 264, 73 L. Ed. 989, 1929 U.S. LEXIS 178 (1929).

The provisions of this section do not apply where their application would be unreasonable or impracticable. Gordon v. Tennessee C. R. Co., 167 Tenn. 302, 69 S.W.2d 611, 1933 Tenn. LEXIS 41 (1934).

9. — —Impossibility of Compliance.

Where the impossibility to comply with the statute and the unavoidableness of the accident arise out of the default of a railroad company, it will not be excused for its noncompliance with the statute, and will not be relieved from liability. Nashville & C. R.R. Co. v. Anthony, 69 Tenn. 516, 1878 Tenn. LEXIS 129 (1878); East T., V. & G. R.R. Co. v. Selcer, 75 Tenn. 557, 1881 Tenn. LEXIS 152 (1881); Iron M. R. Co. v. Dies, 98 Tenn. 655, 41 S.W. 860 (1897); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900).

The provisions of this and the succeeding section are inapplicable to the operation of trains where, because of the locality or existing conditions, compliance with the statute is impossible, as where engines or cars are being switched and are necessarily being pushed instead of pulled by the engine. Towles v. Southern R. Co., 103 F. 405, 1900 U.S. App. LEXIS 4816 (C.C.D. Tenn. 1900).

The statutory precautions for the prevention of accidents on railroads do not apply where it is impossible to comply therewith, or wholly impracticable, consistently with the operation of the road, as in cases of switching operations, or where it is necessary in or about the yards to push cars with the engine moving backwards; but the railroad company cannot be excused by “impracticability” which it unnecessarily causes or tolerates. Where the plaintiff's intestate was struck and killed at a street crossing by cars being so pushed, on a track extending along a cross street, extending from the terminal of one railroad to that of another, to which the cars, with their loads, were being transferred, it was a question of fact whether the situation was such as to make the statute applicable, and evidence as to the length of the transfer track, the extent of its use, the character of the country traversed, and the means or practicability of transferring the engine around, so as to return on the track if it preceded the cars, was relevant and admissible, and its rejection constituted reversible error. St. Louis & S. F. R. Co. v. Rutland, 207 F. 287, 1913 U.S. App. LEXIS 1625 (6th Cir. Tenn. 1913), cert. denied, 231 U.S. 755, 34 S. Ct. 323, 58 L. Ed. 468, 1913 U.S. LEXIS 2545 (1913), cert. denied, Rutland v. St. Louis & S. F. R. Co., 231 U.S. 755, 34 S. Ct. 323, 58 L. Ed. 468, 1913 U.S. LEXIS 2545 (1913).

Where heavy fog prevented engineer and fireman from seeing more than 10 or 15 feet ahead and therefore prevented them from seeing truck stalled on track at crossing, suit could not be maintained for violation of this section under such circumstances. Nashville, C. & S. L. Ry. v. Smith, 33 Tenn. App. 45, 228 S.W.2d 495, 1949 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1949).

10. — —Duty to Passengers.

The means employed to stop the train should not be such as would cause imminent risk and danger to the passengers, but a slight increase of the danger to the passengers will be no excuse for failing to follow the positive mandate of the statute. The employees of the railroad company will not be allowed to excuse themselves from failing to comply with the positive requirements by the mere expression of an opinion that to do so would endanger the passengers. The nature and extent of that danger should be clearly shown. Louisville & N. R. Co. v. Connor, 56 Tenn. 19, 1871 Tenn. LEXIS 423 (1871); Memphis & C.R.R. v. Smith, 56 Tenn. 860, 1872 Tenn. LEXIS 214 (1872); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911).

The duty of railroad companies to carry their passengers safely is paramount to all others, and is superior to the statutory requirements and precautions; and the statutory precautions should not be observed, when to do so would imminently imperil the lives and limbs of passengers and employees on the train; but these precautions should be observed when human life is in danger on the road, and the probability of slight injuries to passengers and employees, or even serious injuries growing out of unusual positions which they may at the time occupy, will not excuse the observance of such precautions for the protection of the life of a trespasser. Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911).

11. — —Effect of Speed.

The paramount object of the statute is the protection of human life, and the protection of property is a secondary consideration. Therefore, where the train is moving at such a rate of speed at the time of the collision, or the circumstances of its situation are such that it would be dangerous to the lives and limbs of the passengers and persons on the train to reverse the engine, the engineer in charge is not bound to do so, and should not do so, although such action might prevent the accident or collision. Under such circumstances, the railroad company will not be liable for the consequence of not reversing the engine. Routon v. Louisville & N.R.R., 1 Shan. 528 (1875); Nashville & C.R.R. v. Troxlee, 69 Tenn. 520, 1878 Tenn. LEXIS 130 (1878); East T., V. & G. R.R. Co. v. Selcer, 75 Tenn. 557, 1881 Tenn. LEXIS 152 (1881); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911).

Where an animal has been chased by an engine where the road is fenced on both sides, though during all this time the animal is in the ditch by its side, or so near it as to make a collision probable, it would not be a compliance with the statute for the engineer recklessly to run his engine at full speed, and use no effort to avoid a collision, until the animal, through fright, leaps upon the track. Nashville & C. R.R. Co. v. Anthony, 69 Tenn. 516, 1878 Tenn. LEXIS 129 (1878); East T., V. & G. R.R. Co. v. Selcer, 75 Tenn. 557, 1881 Tenn. LEXIS 152 (1881); Louisville & N.R.R. v. Milam, 77 Tenn. 223, 1882 Tenn. LEXIS 40 (1882); Nashville, C. & St. L. Ry. v. Ford, 139 Tenn. 505, 201 S.W. 755, 1917 Tenn. LEXIS 127 (1917).

There is no statute fixing the rate of speed at which railroad trains shall be run; and the question of reckless or excessive speed is one to be determined by all the facts and circumstances at the time, and not by an arbitrary rule that the speed must not be so great that the train cannot be stopped within the distance an obstruction can be seen by the aid of the headlight. Louisville & N.R.R. v. Milam, 77 Tenn. 223, 1882 Tenn. LEXIS 40 (1882). See Illinois C. R. Co. v. Porter, 117 Tenn. 13, 94 S.W. 666, 1906 Tenn. LEXIS 27 (1906).

A railroad company unquestionably has the right to run special trains, at such times, and at such increased rates of speed within the limits of prudence and safety to its passengers, as the necessities or convenience of its business, general or special, may require; and hence a charge of the court is erroneous in assuming or implying that the running of trains off schedule time or at increased rates of speed is, per se, negligence. East Tenn. & W.N.C.R.R. v. Winters, 85 Tenn. 240, 1 S.W. 790, 1886 Tenn. LEXIS 37 (1886). See Illinois C. R. Co. v. Porter, 117 Tenn. 13, 94 S.W. 666, 1906 Tenn. LEXIS 27 (1906).

As a precaution against injury to persons walking on the track, but not seen or known so to be, there is no duty to slacken the ordinary speed of a train approaching a curve in the open country, although the curve be in whole or in part in a cut, or hidden from view by a train approaching and passing on the concave side of the curve, on a double track railroad. Cincinnati, N.O. & T.P. Ry. v. Wright, 133 Tenn. 74, 179 S.W. 641, 1915 Tenn. LEXIS 75 (1915).

While no rate of speed is of itself negligence, it may be negligent to run a train at a high rate of speed through a populous community and over a much frequented crossing, or over a crossing where the view of the track is so obstructed as to render the approach dangerous. This is true although the crossing at which the accident occurs is in a country district, where the crossing is much used by the public. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

Where there is no statutory regulation fixing the rate of speed of trains, it is a question of fact whether the rate of speed was excessive or dangerous in that locality, and if so found by the jury, and the excessive speed caused the injury, the road is liable. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

Unusual and excessive speed of the train will not afford basis for a recovery unless it is the proximate cause of the injuries. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

12. —Scope of Statute.

13. — —City Railroads.

The statute applies to regular railroads operating their trains over tracks laid in the streets of a city, and they are compelled to comply strictly with all the precautions prescribed by the statute. Katzenberger v. Lawo, 90 Tenn. 235, 16 S.W. 611, 1891 Tenn. LEXIS 15, 25 Am. St. Rep. 681, 13 L.R.A. 185 (1891); Little Rock & M.R.R. v. Wilson, 90 Tenn. 271, 16 S.W. 613, 1891 Tenn. LEXIS 18, 25 Am. St. Rep. 693, 13 L.R.A. 364 (1891); Iron M. R. Co. v. Dies, 98 Tenn. 655, 41 S.W. 860 (1897); Harrell v. Alabama G.S.R.R., 5 Tenn. App. 471, 1927 Tenn. App. LEXIS 77 (1927).

14. — —Interurbans.

The same rules apply to interurban electric railroads. Stem v. Nashville I. Ry., 142 Tenn. 494, 221 S.W. 192, 1919 Tenn. LEXIS 77 (1919); Union Traction Co. v. Anderson, 146 Tenn. 476, 242 S.W. 876, 1921 Tenn. LEXIS 28, 25 A.L.R. 1496 (1922); Union Traction Co. v. Todd, 16 Tenn. App. 200, 64 S.W.2d 26, 1933 Tenn. App. LEXIS 3 (1933).

15. — —Private Railroads.

This statute applies not only to public railroads but also to a private railroad operated by a lumber company over a distance of about 14 miles through a settled country and over public roads. Toomey v. Goad, 12 Tenn. App. 80, 1928 Tenn. App. LEXIS 201 (1928).

16. — —Lessor-Lessee.

A railroad company is not responsible for negligence in the operation of an engine, when, at the time of the accident, the engine and the crew by which it was operated were rented to and under the control of another company. Byrne v. Kansas City, Ft. S. & M. R. Co., 61 F. 605, 1894 U.S. App. LEXIS 2211, 24 L.R.A. 693 (6th Cir. Tenn. 1894). See also Arrowsmith v. Nashville & D. R. Co., 57 F. 165, 1893 U.S. App. LEXIS 2756 (C.C.D. Tenn. 1893).

17. — —Dummy Lines.

Dummy lines over which trains are drawn by a small steam engine, although exclusively engaged in carrying passengers, whether operated within or without the limits of a city, are railroads within the meaning and purview of this statute. Katzenberger v. Lawo, 90 Tenn. 235, 16 S.W. 611, 1891 Tenn. LEXIS 15, 25 Am. St. Rep. 681, 13 L.R.A. 185 (1891); Byrne v. Kansas City, Ft. S. & M. R. Co., 61 F. 605, 1894 U.S. App. LEXIS 2211, 24 L.R.A. 693 (6th Cir. Tenn. 1894); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Illinois C. R. Co. v. Hudson, 136 Tenn. 1, 188 S.W. 589, 1916 Tenn. LEXIS 94, 2 A.L.R. 147 (1916).

18. — —Through Trains.

The statute is applicable to a through train on a regular trip in rapid motion, and not engaged in switching, though at the time it be passing through the yards or station grounds of the railroad company. Mobile & O. R. Co. v. House, 96 Tenn. 552, 35 S.W. 561 (1896); Illinois Cent. R.R. v. Abernathey, 106 Tenn. 722, 64 S.W. 3, 1901 Tenn. LEXIS 129 (1901).

19. — —Detached Cars.

The statute has no application to the movement, by impetus or gravitation, of cars detached from the locomotive by the train breaking in two, while going down grade, but the principles of the common law govern in such cases. Patton v. Railway Co., 89 Tenn. 370, 15 S.W. 919, 1890 Tenn. LEXIS 59, 12 L.R.A. 184 (1890).

The precautions are not applicable where a train became uncoupled on a sidetrack in the depot grounds and was backing up to recouple. Payne v. Illinois Cent. R.R., 155 F. 73, 1907 U.S. App. LEXIS 4636 (6th Cir. 1907).

This section is not applicable to the operation of a handcar upon railroad track. Gordon v. Tennessee C. R. Co., 167 Tenn. 302, 69 S.W.2d 611, 1933 Tenn. LEXIS 41 (1934).

This statute has no application to the movement by impetus or gravitation of cars detached from the locomotive. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

A gasoline motor car used by a section crew does not come within the purview of the statute. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

20. — —Projecting Material.

Injury from being hit by piece of scantling projecting about six feet from edge of a car loaded with lumber was not within statute. Preslar v. Mobile & O.R.R., 135 Tenn. 42, 185 S.W. 67, 1916 Tenn. LEXIS 11 (1916).

21. — —Movement of Cars.

If by reason of having two engines, one in front and the other in the rear of the train, compliance on the part of the employees of the company is hindered, a case of liability may be made, though if the management of the rear engine had nothing to do with the collision and compliance is otherwise shown, there would be no liability. Chamberlain v. McAlister, 7 Tenn. Civ. App. (7 Higgins) 26 (1916).

22. — — —Backing of Cars.

The statute applies indifferently to all railroad trains, whether they are moving forward or backward, or by means of an engine placed in front or rear, or at an intermediate point in the train. As the precautions can be observed only when the train is moving forward by means of an engine in its front, the railroad company's liability for injuries inflicted by collision with its train moving backward, or by means of an engine placed elsewhere than in front, is absolute, because the railroad company has imposed upon itself the impossibility to observe the statutory precautions. Little Rock & M.R.R. v. Wilson, 90 Tenn. 271, 16 S.W. 613, 1891 Tenn. LEXIS 18, 25 Am. St. Rep. 693, 13 L.R.A. 364 (1891); Railroad v. Acuff, 92 Tenn. 26, 20 S.W. 348, 1892 Tenn. LEXIS 47 (1892); Southern Ry. v. Pugh, 95 Tenn. 419, 32 S.W. 311 (1895); Iron M. R. Co. v. Dies, 98 Tenn. 655, 41 S.W. 860 (1897); Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Cincinnati, N.O. & T.P. Ry. v. Davis, 161 F. 334, 1908 U.S. App. LEXIS 4354 (6th Cir. 1908); Belt Ry. v. Vaughn, 16 Tenn. App. 590, 65 S.W.2d 580, 1933 Tenn. App. LEXIS 31 (1933). But see Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904), confining the holding in these cases to situations where the railroad has placed itself in such condition as to be unable to comply with the statute in respect to keeping an effective lookout ahead, and denying recovery where there has been a compliance with the statute by the backing train.

The statute applies even where a deaf and dumb man is killed by a construction train running backward. Railroad v. Acuff, 92 Tenn. 26, 20 S.W. 348, 1892 Tenn. LEXIS 47 (1892).

This statute cannot be complied with unless the engine is in front of the cars in the direction in which they are moving. Nashville, C. & St. L. Ry. v. Lovejoy, 138 Tenn. 492, 198 S.W. 61, 1917 Tenn. LEXIS 59 (1917).

A 16-year-old boy who did not see backing train until it was close upon him and on account of trucks could not stand on the side of the train next to street, and who crossed tracks and stood by building and was brushed by train and injured was negligent but was entitled to recover since duty to maintain lookout could not be observed as train was being backed. Belt Ry. v. Vaughn, 16 Tenn. App. 590, 65 S.W.2d 580, 1933 Tenn. App. LEXIS 31 (1933).

23. — — —Switching Operations.

The precautions prescribed by this statute are not applicable to switching operations within the yards of a railroad company. Common law rules control in such cases. The statute does not apply to a “switchtrain” while no obstruction appears on the track ahead between crossings. The fact that a person who could not be seen suddenly appears on the track, immediately in front of the pilot, as it is passing, does not change the rule. Moran v. Nashville & C.R.R., 61 Tenn. 379, 1872 Tenn. LEXIS 384 (1872); Cox v. Louisville & N.R.R., 1 Shan. 475 (1875); East Tenn., V. & G.R.R. v. Rush, 83 Tenn. 145, 1885 Tenn. LEXIS 34 (1885); Southern Ry. v. Pugh, 95 Tenn. 419, 32 S.W. 311 (1895); Mobile & O. R. Co. v. House, 96 Tenn. 552, 35 S.W. 561 (1896); Iron M. R. Co. v. Dies, 98 Tenn. 655, 41 S.W. 860 (1897); Illinois Cent. R.R. v. Abernathey, 106 Tenn. 722, 64 S.W. 3, 1901 Tenn. LEXIS 129 (1901); King v. Tennessee C. R. Co., 129 Tenn. 44, 164 S.W. 1181, 1913 Tenn. LEXIS 93, 51 L.R.A. (n.s.) 618 (1913). See Crowley v. Cincinnati, N.O. & T.P.R.R., 108 Tenn. 74, 65 S.W. 411 (1901).

To avoid the application of the statute, the switching must be done within the switching yards. If the switching is done on the main track, the statute applies. Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905). See Iron M. R. Co. v. Dies, 98 Tenn. 655, 41 S.W. 860 (1897).

Where engines or cars are being switched and are necessarily being pushed instead of pulled by the engine, the provisions of this and the section following do not apply. Towles v. Southern R. Co., 103 F. 405, 1900 U.S. App. LEXIS 4816 (C.C.D. Tenn. 1900).

Where the engine is operated not in switching within the company's yards, but outside of the yards, in transferring cars from its north to its south station, and in delivering cars along its road between such stations or yard limits, the statute for the prevention of accidents on railroads is applicable. Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905).

Where a terminal railway company nightly moved a sleeping car from the station of a certain railroad to its own station, where it was picked up by another railroad company, and for such purpose ran its engine about half a mile on its own track to the junction of its track with that of the certain railroad company, and then back down that company's track about one mile and a half to that company's station, and while so backing within the station limits of that company ran against the plaintiff, it was engaged in a “switching operation,” even though that company was not accustomed to use the tracks in question at that point for switching purposes; and the precautions prescribed by statute for the prevention of accidents on railroads did not apply. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

Mere fact that train was being operated within switching district did not relieve operator of compliance with statutory precautions; it must have been engaged in switching operations. Tennessee C. R. Co. v. Zearing, 2 Tenn. App. 451, — S.W. —, 1925 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1925).

Observance by a railroad company of these statutory precautions is not required in “switching operations.” Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

Engine of one company going into industrial section of city upon tracks of another company to pick up cars was not a switching operation within its yards, depot grounds, or on its sidetracks. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

24. — — — —Evidence or Proof.

In order to avoid the application of the statute in case of switching cars, it must be shown that the accident occurred within the yards. This fact cannot be left to inference from unsatisfactory proof. Louisville & N. R. Co. v. Conner, 61 Tenn. 382, 1872 Tenn. LEXIS 385 (1872).

Where the declaration does not show that the accident occurred in switching operations within the railroad yards, plea and proof of such fact by the railroad company is necessary to preclude the application of the statute. Crowley v. Cincinnati, N.O. & T.P.R.R., 108 Tenn. 74, 65 S.W. 411 (1901).

Where plaintiff's intestate was killed at a street and railway crossing by cars which were being switched on a track extending from the terminal of one railroad to that of another, it was a question of fact whether the situation was such as to make the requirements of this section applicable, and evidence of the surrounding facts and circumstances was admissible. St. Louis & S. F. R. Co. v. Rutland, 207 F. 287, 1913 U.S. App. LEXIS 1625 (6th Cir. Tenn. 1913), cert. denied, 231 U.S. 755, 34 S. Ct. 323, 58 L. Ed. 468, 1913 U.S. LEXIS 2545 (1913), cert. denied, Rutland v. St. Louis & S. F. R. Co., 231 U.S. 755, 34 S. Ct. 323, 58 L. Ed. 468, 1913 U.S. LEXIS 2545 (1913).

Where the evidence showed that a train was being moved from one part of town to another to be turned over to another train crew, and no switching was done during the operation, the train was not switching and was required to exercise all statutory precautions for prevention of accidents. Harrell v. Alabama G.S.R.R., 5 Tenn. App. 471, 1927 Tenn. App. LEXIS 77 (1927).

25. — —Employees.

26. — — —Federal Employees.

The precautions have no application in case of employee under the Federal Employers' Liability Act. Lee v. Tennessee Cent. Ry., 9 Tenn. App. 284, 1928 Tenn. App. LEXIS 233 (1928).

27. — — —Operations of Trains.

In relation to the servants and employees who are moving about or across the tracks in the performance of their duties, the statute is not applicable, when the railroad company is running its engines and cars about its depot and yards, in making up its trains and switching its engines and cars from one track to another. Louisville & N.R.R. v. Robertson, 56 Tenn. 276, 1872 Tenn. LEXIS 141 (1872), overruled in part, McIntyre v. Balentine, 833 S.W.2d 52, 1992 Tenn. LEXIS 336 (Tenn. 1992); Haley v. Mobile & O. R. Co., 66 Tenn. 239, 1874 Tenn. LEXIS 113 (1874); Cox v. Louisville & N.R.R., 1 Shan. 475 (1875); Bradley v. Nashville, C. & St. L. Ry., 82 Tenn. 374, 1884 Tenn. LEXIS 138 (1884); East Tenn., V. & G.R.R. v. Rush, 83 Tenn. 145, 1885 Tenn. LEXIS 34 (1885); Taylor v. Louisville & N.R.R., 93 Tenn. 305, 27 S.W. 663, 1893 Tenn. LEXIS 57 (1893); Cincinnati, N.O. & T.P.R.R. v. Holland, 117 Tenn. 257, 96 S.W. 758, 1906 Tenn. LEXIS 47 (1906); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909); Smith v. Illinois Cent. R.R., 200 F. 553, 1912 U.S. App. LEXIS 1874 (6th Cir. 1912); Southern Ry. v. DeFoe, 6 Tenn. App. 503, 1927 Tenn. App. LEXIS 174 (1927). But see Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905).

The statutory precautions do not apply in favor of the foreman of a railroad construction gang, killed as the result of being struck by a locomotive which he had seen approaching, while he was standing near the track clearing it for the train to pass. Rogers v. Cincinnati, N.O. & T.P. Ry., 136 F. 573, 1905 U.S. App. LEXIS 4493 (6th Cir. 1905).

This and the two following sections are inapplicable where injured person was engaged in the distribution of detached cars, in the “making up” of trains, and in other necessary switching, in and upon the employer's yards, depot grounds and sidetracks. The common law governs such case. Lawson v. Tennessee, A. & G. Ry., 159 F.2d 65, 1947 U.S. App. LEXIS 2434 (6th Cir. 1947).

28. — — —Negligence.

The statute does not apply to a railroad employee, in the regular discharge of his duty, whose negligence or willful act caused, or contributed to cause, the accident or collision. Louisville & N. R. Co. v. Burke, 46 Tenn. 45, 1868 Tenn. LEXIS 68 (1868), overruled, Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871). See Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); East Tenn., V. & G.R.R. v. Rush, 83 Tenn. 145, 1885 Tenn. LEXIS 34 (1885); Goodlett v. Louisville & N.R.R., 122 U.S. 391, 7 S. Ct. 1254, 30 L. Ed. 1230, 1887 U.S. LEXIS 2119 (1887); Cincinnati, N.O. & T.P.R.R. v. Holland, 117 Tenn. 257, 96 S.W. 758, 1906 Tenn. LEXIS 47 (1906); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909).

An action will not lie in behalf of the agent of the railroad company, employed in the running of the trains, and whose negligence or willful act caused, or contributed to cause, the accident or collision occasioning him the injury. Louisville & N. R. Co. v. Burke, 46 Tenn. 45, 1868 Tenn. LEXIS 68 (1868), overruled, Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); See Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); East Tenn., V. & G.R.R. v. Rush, 83 Tenn. 145, 1885 Tenn. LEXIS 34 (1885); Rogers v. Cincinnati, N.O. & T.P. Ry., 136 F. 573, 1905 U.S. App. LEXIS 4493 (6th Cir. 1905); Cincinnati, N.O. & T.P.R.R. v. Holland, 117 Tenn. 257, 96 S.W. 758, 1906 Tenn. LEXIS 47 (1906); Nashville, C. & St. L.R.R. v. Hayes, 117 Tenn. 680, 99 S.W. 362, 1906 Tenn. LEXIS 72 (1906); Louisville & N.R.R. v. Womack, 173 F. 752, 1909 U.S. App. LEXIS 5102 (6th Cir. 1909); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909).

An employee, guilty of the grossest negligence, cannot recover for the resulting injury when his employer, defendant railroad company, had complied with the provisions of this section. Goodlett v. Louisville & N.R.R., 122 U.S. 391, 7 S. Ct. 1254, 30 L. Ed. 1230, 1887 U.S. LEXIS 2119 (1887).

Where an employee of a railroad company is injured on the tracks, its liability depends on the determination of the questions of negligence and contributory negligence under the rules of the common law. Cincinnati, N.O. & T.P.R.R. v. Holland, 117 Tenn. 257, 96 S.W. 758, 1906 Tenn. LEXIS 47 (1906); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909); Thornton v. Nashville, C. &. St. L. Ry., 5 Tenn. App. 6, 1927 Tenn. App. LEXIS 29 (1927).

29. — —Guests.

Where the driver of an automobile was negligent in proceeding over a railroad crossing, and the railroad company's servants in charge of a train which struck the automobile were also negligent in failing to give warning signals or to maintain a lookout, both the driver and the railroad company are liable as joint tortfeasors to a guest in the motor car, who was injured, for their concurrent negligence produced the injury. Tennessee C. R. Co. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225, 1920 Tenn. LEXIS 22 (1920).

Passenger in automobile who knew of danger of crossing and who insisted that her husband, rather than the chauffeur, drive across the track, is contributorily negligent when she failed to keep a lookout for trains. Klein v. Illinois C. R. Co., 4 Tenn. App. 563, — S.W. —, 1927 Tenn. App. LEXIS 208 (Tenn. Ct. App. 1927).

Ordinarily a guest may rely upon the driver and need not object unless the danger is obvious. Southern Ry. v. Harris, 9 Tenn. App. 589, 1929 Tenn. App. LEXIS 115 (1929).

Where the matter of a guest's negligence is debatable, the question is one for the jury. Southern Ry. v. Harris, 9 Tenn. App. 589, 1929 Tenn. App. LEXIS 115 (1929).

30. — —Trespassers.

The mere fact that a party is a trespasser upon the railroad track and is injured while thereon, or while contributing to the injury by his own negligence, will not prevent him from recovering damages for injuries negligently inflicted by the railroad company, if the injuries might have been averted by the use of ordinary care on the part of the company. East Tenn., V. & G.R.R. v. Fain, 80 Tenn. 35, 1883 Tenn. LEXIS 137 (1883); East Tenn., V. & G.R.R. v. Humphreys, 80 Tenn. 200, 1883 Tenn. LEXIS 158 (1883), criticized, Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Patton v. Railway Co., 89 Tenn. 370, 15 S.W. 919, 1890 Tenn. LEXIS 59, 12 L.R.A. 184 (1890); Felton v. Newport, 92 F. 470, 1899 U.S. App. LEXIS 2158 (6th Cir. 1899), aff'd, Felton v. Newport, 105 F. 332, 1900 U.S. App. LEXIS 3833 (6th Cir. 1900); Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

A railroad company is not relieved from the duties imposed by this section, nor from liability, because the person injured was a trespasser. Felton v. Newport, 92 F. 470, 1899 U.S. App. LEXIS 2158 (6th Cir. 1899), aff'd, Felton v. Newport, 105 F. 332, 1900 U.S. App. LEXIS 3833 (6th Cir. 1900); Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

The plaintiff, employee of a coal company engaged in weighing coal cars on defendant railroad company's right of way, injured while walking on the track in going from the scales to the office, cannot complain of the railroad company's failure to signal the approach of a backing train, where he saw the train when it started to back in time to get out of the way, but was unable to move because his foot was caught between a tie and switch rod, the train being engaged in a switching movement so as to make the statute inapplicable. Nashville, C. & St. L. Ry. v. Lovejoy, 138 Tenn. 492, 198 S.W. 61, 1917 Tenn. LEXIS 59 (1917).

An employee of a railroad company, engaged in inspecting the cars of his employer and directed by his employer also to examine cars on the tracks of another railroad company, when observed on his way over such tracks to his employer's tracks, but not authorized by the other railroad company to go on its tracks for such purpose, and it not appearing that his employer company had any such authority over the property of the other railroad company, was “trespasser” on such tracks. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

The fact that a person injured in the switching yards of a railroad company, where the company was engaged in switching, was a trespasser on the track, will not prevent a recovery, for the rule as to trespassers injured in the yards of a railroad company while the company is switching is the same with respect to a stranger as to the employees of a railroad company. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

31. — —Passengers.

The statute has no application to persons while on the train. The common law applies to passengers and property on the train. Louisville & N.R.R. v. McKenna, 75 Tenn. 313, 1881 Tenn. LEXIS 122 (1881).

32. — —Animals.

33. — — —Effect of Railroad Fencing Acts.

The provisions of this section, were greatly modified, and in a large measure superseded, by the railroad fencing statute, § 65-1223 (since repealed), as to animals killed on unfenced railroads. Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618, 1892 Tenn. LEXIS 20 (1892); Railroad v. Russell, 92 Tenn. 108, 20 S.W. 784, 1892 Tenn. LEXIS 55 (1892); Railroad v. Stonecipher, 95 Tenn. 311, 32 S.W. 208, 1895 Tenn. LEXIS 89 (1895); Mobile & O. R. Co. v. House, 96 Tenn. 552, 35 S.W. 561 (1896); Mobile & O.R.R. v. Tiernan, 102 Tenn. 704, 52 S.W. 179 (1899); Louisville & N.R.R. v. Patton, 104 Tenn. 40, 54 S.W. 984, 1899 Tenn. LEXIS 7 (1899). See also Briggs v. Clawson Bros., 8 Tenn. App. 251, — S.W.2d —, 1928 Tenn. App. LEXIS 135 (Tenn. Ct. App. 1928).

34. — — —Trespassing Stock.

The injuries must be such as may be directly produced by the train, and not such as stock may inflict upon themselves, without collision with the train, in the fright occasioned by the running of the train in the legitimate exercise of the company's franchises. Holder v. Chicago, St. L. & N.O.R.R., 79 Tenn. 176, 1883 Tenn. LEXIS 36 (1883); Louisville N. & G. S. R.R. Co. v. Reidmond, 79 Tenn. 205, 1883 Tenn. LEXIS 44 (1883); Railroad v. Sadler, 91 Tenn. 508, 19 S.W. 618, 1892 Tenn. LEXIS 21, 30 Am. St. Rep. 896 (1892); Railroad v. Phillips, 100 Tenn. 130, 42 S.W. 925, 1897 Tenn. LEXIS 96 (1897); Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

A railroad company is not liable for the value of dogs killed, when trespassing upon its track, where the statutory precautions are observed. Fink v. Evans, 95 Tenn. 413, 32 S.W. 307, 1895 Tenn. LEXIS 109 (1895).

35. —Pleadings.

A declaration which avers that the servants of a railroad company wrongfully and negligently ran its train over a person gives notice that it was contrary to the statute, though no reference is made to the statute. East Tenn., V. & G.R.R. v. Pratt, 85 Tenn. 9, 1 S.W. 618, 1886 Tenn. LEXIS 3 (1886); Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Crowley v. Cincinnati, N.O. & T.P.R.R., 108 Tenn. 74, 65 S.W. 411 (1901); Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904); Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912).

A declaration averring, in general terms only, that “the defendant wrongfully and negligently killed the deceased,” without stating the facts constituting the negligence, in an action for damages for such killing, is bad on demurrer. Chattanooga Cotton-Oil Co. v. Shamblin, 101 Tenn. 263, 47 S.W. 496, 1898 Tenn. LEXIS 60 (1898). But see Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900).

The declaration in an action seeking a recovery for the defendant's alleged wrongful and negligent killing of the plaintiff's intestate need not negative negligence or fault on the part of the deceased. Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900). See Stewart v. Nashville, 96 Tenn. 50, 33 S.W. 613, 1895 Tenn. LEXIS 7 (1895).

Where the first count in the declaration alleges the defendant railroad company's failure to comply with the statutory precautions, and the second count is substantially the same, with the omission of allegations of noncompliance with the statutory precautions, both counts may state a cause of action under the statute requiring the railroad company to show a compliance. The facts alleged show whether or not the statutory precautions were applicable, and if applicable, the railroad is required to show compliance therewith without specific allegation of noncompliance. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907); Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912).

A declaration distinctly showing a collision with an object or person on the track at a crossing, or that the action is based distinctly on subdivisions (2) and (3) (deleted by amendment), indicates an unmistakable purpose to base the action upon the statute, and not upon the common law, for these statutory provisions are not concurrent with the common law. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916); Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

A count in the declaration, alleging that the defendant with its engine wrongfully and negligently backed its cars upon and over the plaintiff, put in issue the violation of this statute. Nashville, C. & St. L. Ry. v. Lovejoy, 138 Tenn. 492, 198 S.W. 61, 1917 Tenn. LEXIS 59 (1917).

A declaration alleging that defendant unlawfully, wrongfully, and negligently ran one of his engines into and against and over plaintiff, injuring him as therein set forth, was drawn under the statute and invoked the application of the precautions prescribed by statute for the prevention of accidents on railroads. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

36. — —Common Law and Statutory Counts.

This statute and the common law are concurrent, and a count framed under the statute may go further and also include averments of additional common law negligence, and the count should then be treated as one wholly under the common law. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907); Kennedy v. Southern Ry., 2 Tenn. Civ. App. (2 Higgins) 103 (1911); Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

Under a count charging common law negligence, evidence of noncompliance with statute is inadmissible. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907); Ori v. St. Louis S. F. R. Co., 48 Tenn. App. 448, 348 S.W.2d 809, 1961 Tenn. App. LEXIS 86 (1961).

A count in an action for personal injuries, under this statute, is a count under the common law, unless it is further charged that the person or object on the track was struck by a moving train, which allegation of collision with a moving train is necessary to bring the count within § 65-12-109; and where the warrant did not charge that the train struck the plaintiff or her wagon, and it appeared that she jumped from the wagon, whereby she was injured without collision with the train, the action was under the common law, and there was no absolute liability for the railroad company's failure to observe the precautions. Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

Where, in an action to recover for injuries alleged to have been sustained, it is not charged in the complaint that the train struck plaintiff or her wagon and it appears that she jumped from the wagon, the action is under the common law and there is no absolute liability for failure to take the specified statutory precautions. Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

If, in a declaration based on the statute, there be also inserted in a single count averments based upon the common law, the effect will not be to convert the whole declaration into a common law pleading, but to lay it open to a demurrer for duplicity. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

The common law and the statutory causes of action for personal injuries on a railroad crossing may both exist in the same case, but it is required that they shall each be presented in separate counts. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916); Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954); Ori v. St. Louis S. F. R. Co., 48 Tenn. App. 448, 348 S.W.2d 809, 1961 Tenn. App. LEXIS 86 (1961).

37. — —Amendments.

Action of the trial court in allowing the plaintiff to amend his declaration so as to transfer from the other counts all the averments of common law negligence and put them in an additional count, thus separating them from the averments of statutory negligence in the other counts, was not error. Tennessee C. R. Co. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225, 1920 Tenn. LEXIS 22 (1920).

38. — —Evidence.

Under a count declaring under this statute, evidence of noncompliance with the precautions herein prescribed is admissible, but under a count charging common law negligence, such evidence is inadmissible. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907).

39. —Negligence.

The use of the term “conduct” in connection with negligent conduct, and in that sense as the cause of the injury, is not erroneous. Cherokee Packet Co. v. Hilson, 95 Tenn. 1, 31 S.W. 737, 1895 Tenn. LEXIS 59 (1895).

The language of former § 65-1210 was explicit and certain, the railroad was required to show strict compliance with the statute to absolve itself of negligence and even contributory negligence on the part of a person injured did not excuse a strict compliance. Majestic v. Louisville & N. R. Co., 147 F.2d 621, 1945 U.S. App. LEXIS 2180 (6th Cir. Tenn. 1945).

40. — —Contributory Negligence at Common Law.

Where the common law is applicable, a person injured as the result of his own recklessness, or by his own willful act, cannot recover damages. Louisville & N. R. Co. v. Burke, 46 Tenn. 45, 1868 Tenn. LEXIS 68 (1868), overruled, Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); See Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); East Tenn., V. & G.R.R. v. Smith, 2 Shan. 1 (1876); Chesapeake, O. & S.W.R.R. v. Foster, 88 Tenn. 671, 13 S.W. 694 (1890); See Nashville, C. & St. L.R.R. v. Hayes, 117 Tenn. 680, 99 S.W. 362, 1906 Tenn. LEXIS 72 (1906); Moore v. Chattanooga Elec. Ry., 119 Tenn. 710, 109 S.W. 497, 1907 Tenn. LEXIS 32, 16 L.R.A. (n.s.) 978 (1907).

In those cases where the statute was not applicable, the burden of proof remained as it was, and the effect of contributory negligence continued to be the same as it was at common law. Little Rock & M.R.R. v. Wilson, 90 Tenn. 271, 16 S.W. 613, 1891 Tenn. LEXIS 18, 25 Am. St. Rep. 693, 13 L.R.A. 364 (1891).

Where the action for injuries on a railroad crossing is based on the common law, the burden of proof is on the plaintiff to show not only the infliction of the injuries, but also the negligence or wrongdoing of the company. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

Where the rights of the parties are to be settled by the common law, the rule is that where the negligence of the party injured contributed proximately to his own injury, either alone or in conjunction with that of the railroad company, there can be no recovery. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917); Tennessee C. R. Co. v. Zearing, 2 Tenn. App. 451, — S.W. —, 1925 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1925). See also Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S.W. 437, 1918 Tenn. LEXIS 59 (1918).

In a common law action for damages for injury at crossing, it was held that the fact that plaintiffs were riding in an automobile and that one of them was the guest of the others did not change their duty to exercise due care for their own safety. This duty is personal to each one. Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S.W. 437, 1918 Tenn. LEXIS 59 (1918).

41. — —Contributory Negligence Under Statute.

Contributory negligence, even gross and directly and proximately contributing to the accident, will not defeat an action based upon the statute, but will go only in mitigation of the damages, whether compensatory or exemplary, where the railroad company fails to comply with the required precautions, when it is possible for it to do so, whether its failure to comply with the statute is the cause of the accident or not. Louisville & N. R. Co. v. Burke, 46 Tenn. 45, 1868 Tenn. LEXIS 68 (1868), overruled, Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); See Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Smith v. Nashville & C.R.R., 46 Tenn. 589, 1869 Tenn. LEXIS 104 (1869); Nashville & C.R.R. v. Smith, 53 Tenn. 174, 1871 Tenn. LEXIS 339 (Tenn. Sep. 30, 1871); Hill v. Louisville & N. R. Co., 56 Tenn. 823, 1872 Tenn. LEXIS 210 (1872); Railroad v. Walker, 58 Tenn. 383, 1872 Tenn. LEXIS 271 (1872), criticized, Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Nashville & C.R.R. v. Smith, 58 Tenn. 455, 1872 Tenn. LEXIS 285 (1872); East Tenn., V. & G.R.R. v. Smith, 2 Shan. 1 (1876); Louisville & N.R.R. v. Gardner, 69 Tenn. 688, 1878 Tenn. LEXIS 159 (1878); Dush v. Fitzhugh, 70 Tenn. 307, 1879 Tenn. LEXIS 180 (1879), criticized, Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); E. T. V. & G. R.R. v. White, 73 Tenn. 540, 1880 Tenn. LEXIS 178 (1880); Nashville & C. R. Co. v. Smith, 77 Tenn. 470, 1882 Tenn. LEXIS 85 (1882); East Tenn., V. & G.R.R. v. Fain, 80 Tenn. 35, 1883 Tenn. LEXIS 137 (1883); East Tenn., V. & G.R.R. v. Humphreys, 80 Tenn. 200, 1883 Tenn. LEXIS 158 (1883), criticized, Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Louisville, N. & G. S. R.R. Co. v. Fleming, 82 Tenn. 128, 1884 Tenn. LEXIS 115 (1884); Chesapeake, O. & S.W.R.R. v. Foster, 88 Tenn. 671, 13 S.W. 694 (1890); Patton v. Railway Co., 89 Tenn. 370, 15 S.W. 919, 1890 Tenn. LEXIS 59, 12 L.R.A. 184 (1890); Louisville & N.R.R. v. Wallace, 90 Tenn. 53, 15 S.W. 921, 1890 Tenn. LEXIS 101 (1890); Louisville & N. R. Co. v. Howard, 90 Tenn. 144, 19 S.W. 116, 1891 Tenn. LEXIS 4 (1891); Little Rock & M.R.R. v. Wilson, 90 Tenn. 271, 16 S.W. 613, 1891 Tenn. LEXIS 18, 25 Am. St. Rep. 693, 13 L.R.A. 364 (1891); Railroad v. Acuff, 92 Tenn. 26, 20 S.W. 348, 1892 Tenn. LEXIS 47 (1892); Western & A. R. Co. v. Roberson, 61 F. 592, 1894 U.S. App. LEXIS 2210 (6th Cir. Tenn. 1894); Byrne v. Kansas City, Ft. S. & M. R. Co., 61 F. 605, 1894 U.S. App. LEXIS 2211, 24 L.R.A. 693 (6th Cir. Tenn. 1894); Southern R.R. v. Pugh, 97 Tenn. 624, 37 S.W. 555, 1896 Tenn. LEXIS 189 (1896), questioned, McIntyre v. Balentine, 833 S.W.2d 52, 1992 Tenn. LEXIS 336 (Tenn. 1992); Saunders v. City & Suburban R.R., 99 Tenn. 130, 41 S.W. 1031, 1897 Tenn. LEXIS 19 (1897); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Barr v. Southern St. Ry., 105 Tenn. 544, 58 S.W. 849 (1900); Felton v. Newport, 105 F. 332, 1900 U.S. App. LEXIS 3833 (6th Cir. 1900); Louisville & N.R.R. v. Truett, 111 F. 876, 1901 U.S. App. LEXIS 4441 (6th Cir. 1901); Nashville Ry. v. Norman, 108 Tenn. 324, 67 S.W. 479, 1901 Tenn. LEXIS 33 (1901), questioned, McIntyre v. Balentine, 833 S.W.2d 52, 1992 Tenn. LEXIS 336 (Tenn. 1992); Louisville & N. R. Co. v. Summers, 125 F. 719, 1903 U.S. App. LEXIS 4210 (6th Cir. Tenn. 1903), cert. denied, 192 U.S. 607, 24 S. Ct. 851, 48 L. Ed. 585, 1904 U.S. LEXIS 1001 (1904), cert. denied, Louisville & N. R. Co. v. Summers, 192 U.S. 607, 24 S. Ct. 851, 48 L. Ed. 585, 1904 U.S. LEXIS 1001 (1904); Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912); Tennessee C. R. Co. v. Page, 153 Tenn. 84, 282 S.W. 376, 1925 Tenn. LEXIS 7 (1926); Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954); Louisville & N. R. Co. v. Farmer, 220 F.2d 90, 1955 U.S. App. LEXIS 3307 (6th Cir. Tenn. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955); Illinois C.R.R. v. Perkins, 223 Miss. 891, 79 So. 2d 459, 1955 Miss. LEXIS 453 (1955).

Contributory negligence of a person who was killed by train while walking on a track was not affected by a general custom to use track for a footway, or by the question whether the deceased knew that trains were due at the time. Louisville & N.R.R. v. McClish, 115 F. 268, 1902 U.S. App. LEXIS 4205 (6th Cir. 1902).

With respect to the burden of proof and the effect of contributory negligence, the statute changed the rule of the common law. Katzenberger v. Lawo, 90 Tenn. 235, 16 S.W. 611, 1891 Tenn. LEXIS 15, 25 Am. St. Rep. 681, 13 L.R.A. 185 (1891); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909).

The liability resulting from failure of the railroad company to observe the statutory precaution prescribed is not defeated by the contributory negligence of the person injured. Southern R. Co. v. Koger, 219 F. 702, 1915 U.S. App. LEXIS 1660 (6th Cir. Tenn. 1915), cert. denied, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915), cert. denied, Southern R. Co. v. Koger, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915).

The causal connection between the violation of the penal statute and the accident, and generally the conduct of both parties, is looked to, to determine liability, and if the negligence of plaintiff is imputed solely from the violation of a statute, and he in fact exercised his intelligence and senses, and acted as a reasonably prudent man to avoid injury, such violation of the statutes without more would not bar recovery for an injury flowing from the wrongful act of defendant. Tennessee C. R. Co. v. Page, 153 Tenn. 84, 282 S.W. 376, 1925 Tenn. LEXIS 7 (1926).

The plaintiff can recover in a case where the statute is applicable, “irrespective of his own contributory negligence, however great”; and this construction as to the absolute character of the statutory liability has been repeatedly followed by the United States Circuit Court of Appeals. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

42. — —Gross Negligence.

Contributory negligence on the part of the injured person goes only in mitigation of damages; however, if the person killed on the track was grossly negligent, the jury may mitigate the damages to nominal damages only, but they need not do so. Cincinnati, N.O. & T.P. Ry. v. Davis, 127 F. 933, 1904 U.S. App. LEXIS 3847 (6th Cir. 1904). Compare N. C. & S. L. Railway Co. v. Overcast, 3 Tenn. Civ. App. (3 Higgins) 235 (1912), holding that the plaintiff guilty of gross contributory negligence is entitled to recover substantial damages, and is not confined to nominal damages.

The negligence of a person on a railroad track, within the railroad station limits on a very dark night, in failing to look and listen when he did not know when an engine or train might appear on the track, is “gross negligence,” and peremptory instructions for the defendant should have been granted. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

43. — —Effect on Railroad's Liability.

The damages are to be diminished according as the contributory negligence is found to be slight or gross. Nashville & C.R.R. v. Nowlin, 69 Tenn. 523, 1878 Tenn. LEXIS 131 (1878).

The condition and conduct, the carelessness, recklessness, and the imprudence of the injured person may be considered in assessing the damages resulting from the injury. Louisville & N. R. Co. v. Conner, 61 Tenn. 382, 1872 Tenn. LEXIS 385 (1872); East Tenn., V. & G.R.R. v. Fain, 80 Tenn. 35, 1883 Tenn. LEXIS 137 (1883); Artenberry v. Railroad, 103 Tenn. 266, 52 S.W. 878, 1899 Tenn. LEXIS 103 (1899).

Contributory negligence on the part of the injured person does not necessarily restrict recovery to nominal damages, but instead the jury is given a wide discretion to fix the damages in accordance with their estimate of the relative negligence of the parties, where both are negligent. Felton v. Newport, 105 F. 332, 1900 U.S. App. LEXIS 3833 (6th Cir. 1900).

Contributory negligence on the part of the injured person is not a complete defense, but goes in mitigation of damages. Louisville & N.R.R. v. Truett, 111 F. 876, 1901 U.S. App. LEXIS 4441 (6th Cir. 1901); Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Southern R. Co. v. Koger, 219 F. 702, 1915 U.S. App. LEXIS 1660 (6th Cir. Tenn. 1915), cert. denied, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915), cert. denied, Southern R. Co. v. Koger, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915); Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917); Tennessee C. R. Co. v. Zearing, 2 Tenn. App. 451, — S.W. —, 1925 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1925); Tennessee C. R. Co. v. Page, 153 Tenn. 84, 282 S.W. 376, 1925 Tenn. LEXIS 7 (1926).

Contributory negligence, however gross, will not operate as a bar to the action, but only goes in mitigation of damages. Howard & Herrin v. Nashville, C. & S. L. R. Co., 3 Tenn. App. 174, — S.W. —, 1926 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1926).

Driving an automobile upon a railroad track, contrary to provisions of Acts 1917, ch. 36, is gross negligence, and if the violation of the statute is the proximate cause of a collision, this conduct should always be charged to plaintiff in mitigation of damages and in extreme cases might reduce the recovery to nominal damages; but the violation of such statute cannot be set up as altogether excusing the railroad of the imperative duty imposed upon it to observe statutes intended to protect life and property. Southern Ry. v. Brubeck, 6 Tenn. App. 493, 1927 Tenn. App. LEXIS 173 (1927).

Although the railroad may be and is liable because of the failure to comply with the statutes, yet the contributory negligence of the party suing will go in reduction of damages. Cincinnati, N.O. & T.P. Ry. v. Wilson, 294 Ky. 698, 172 S.W.2d 585, 1943 Ky. LEXIS 530 (1943).

While ordinarily contributory negligence when the proximate cause of an injury defeats recovery, a plaintiff's negligence, even though the direct and proximate cause of his injury, will not bar his recovery against a railroad which has failed to observe the precautions required by the statute. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

44. — —Instructions.

Contributory negligence mitigates the damages as a matter of law, and not merely in the discretion of the jury; and a charge of the court that “the negligence of the deceased may be considered by the jury in mitigation of damages” contains affirmative and prejudicial error. Nashville & C.R.R. v. Nowlin, 69 Tenn. 523, 1878 Tenn. LEXIS 131 (1878); Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Louisville & N.R.R. v. Cheatham, 118 Tenn. 160, 100 S.W. 902, 1906 Tenn. LEXIS 89 (Tenn. Dec. 1906).

Where the plaintiff is guilty of contributory negligence, under the uncontroverted facts, the trial judge should instruct the jury that the plaintiff is guilty of contributory negligence as a matter of law, and that they must mitigate the damages on account of such negligence; and should not use language that might impress the jurors that they may or may not mitigate the damages as they see fit. N. C. & S. L. Railway Co. v. Overcast, 3 Tenn. Civ. App. (3 Higgins) 235 (1912).

An instruction simply that the contributory negligence of the deceased “can go only to the reduction of damages” is not erroneous, because the jury understood from this instruction that such contributory negligence could not, under the statute, abate the action. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

45. —Evidence and Burden of Proof.

Where the statute was applicable, the burden of proof rested upon the railroad company to show affirmatively due observance of the required statutory precautions, or that such observance was impossible, without its default, and that it was guilty of no negligence in providing effectual means for the prevention of accidents, and that the accident was unavoidable, in order to avoid liability for damages resulting from the accident. Horne v. Memphis & O.R.R., 41 Tenn. 72, 1860 Tenn. LEXIS 17 (1860); Nashville & C.R.R. v. Fugett, 43 Tenn. 402, 1866 Tenn. LEXIS 68 (1866); Smith v. Nashville & C.R.R., 46 Tenn. 589, 1869 Tenn. LEXIS 104 (1869); Nashville & C.R.R. v. Smith, 53 Tenn. 174, 1871 Tenn. LEXIS 339 (Tenn. Sep. 30, 1871); Louisville & N. R. Co. v. Connor, 56 Tenn. 19, 1871 Tenn. LEXIS 423 (1871); Burke v. Louisville & N.R.R., 54 Tenn. 451, 1872 Tenn. LEXIS 72, 19 Am. Rep. 618 (1872); Memphis & C.R.R. v. Smith, 56 Tenn. 860, 1872 Tenn. LEXIS 214 (1872); Louisville & N.R.R. v. Parker, 59 Tenn. 49, 1873 Tenn. LEXIS 25 (1873); Louisville & N.R.R. v. Gardner, 69 Tenn. 688, 1878 Tenn. LEXIS 159 (1878); Sommers v. Mississippi & T.R.R., 75 Tenn. 201, 1881 Tenn. LEXIS 96 (1881); East Tenn., V. & G.R.R. v. Stewart, 81 Tenn. 432, 1884 Tenn. LEXIS 55 (1884); Little Rock & M.R.R. v. Wilson, 90 Tenn. 271, 16 S.W. 613, 1891 Tenn. LEXIS 18, 25 Am. St. Rep. 693, 13 L.R.A. 364 (1891); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909); Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912).

Former § 65-1210 imposing upon railroad companies the burden of proof to show the observance of the precautions was constitutional, and was sanctioned by the police power. Louisville & N. R. Co. v. Burke, 46 Tenn. 45, 1868 Tenn. LEXIS 68 (1868), overruled, Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); See Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912).

The engineer of a railroad company cannot state his mere conclusion of facts to the jury that he did all in his power to prevent the accident. He must state the facts. The jury are the judges as to whether what he did do was all he could do in the premises. Fitch v. Louisville & N.R.R., 3 Shan. 676 (1875). But see Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928); Casteel v. Southern Ry., 187 Tenn. 586, 216 S.W.2d 321, 1948 Tenn. LEXIS 470 (1948).

Where there is no eyewitness to the accident, it is not competent for the defendant to introduce evidence tending to show that the deceased was in the habit of jumping on moving trains near the place where his body was found, for the purpose of raising an inference that his death resulted from an attempt to jump on the train on the particular occasion, but the testimony should be confined to the acts and conduct of the deceased on the particular occasion in issue, such as are competent and capable of being directly or circumstantially proved. Louisville & N.R.R. v. McClish, 115 F. 268, 1902 U.S. App. LEXIS 4205 (6th Cir. 1902).

Evidence as to compliance though negative in form may be positive in nature, as where a witness positively asserts that there was no act of compliance. Cincinnati, N.O. & T.P.R.R. v. Abbott, 5 Tenn. Civ. App. (5 Higgins) 22 (1914).

Evidence with respect to not sounding the whistle or bell is negative in form, though it is not necessarily so in substance, for while negative in form, it may be positive in its nature, as where a witness positively testifies that an alleged occurrence did not take place. The rule that positive evidence neutralizes and destroys negative evidence is not of universal application. The comparative weight and value of the positive and negative evidence must generally be submitted to the jury, without instructions that the one species is entitled to greater weight than the other, unless the evidence called negative is purely of that nature, such as the result of inattention. Cincinnati, N.O. & T.P.R.R. v. Abbott, 5 Tenn. Civ. App. (5 Higgins) 22 (1914).

In action for death on railroad track, circumstantial evidence was sufficient to make out a prima facie case against the railroad company, under the statute. Crowe v. Birmingham & N.W.R.R., 2 Tenn. App. 634, 1925 Tenn. App. LEXIS 114 (1925).

46. —Jury Questions.

A peremptory direction of verdict for defendant should not be made where there was evidence tending to prove that there was no sounding of the whistle or bell and that no proper lookout ahead was kept on the engine, as required by subdivision (3). Louisville & N. R. Co. v. Summers, 125 F. 719, 1903 U.S. App. LEXIS 4210 (6th Cir. Tenn. 1903), cert. denied, 192 U.S. 607, 24 S. Ct. 851, 48 L. Ed. 585, 1904 U.S. LEXIS 1001 (1904), cert. denied, Louisville & N. R. Co. v. Summers, 192 U.S. 607, 24 S. Ct. 851, 48 L. Ed. 585, 1904 U.S. LEXIS 1001 (1904).

It was for the jury to say whether the plaintiff acted with reasonable prudence and caution in jumping from the wagon threatened to be struck with a rapidly moving train, instead of trusting her safety to the speed of the horses, as the driver of the team did, and escaped injury. Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

Where the evidence tends to show that neither the driver of the automobile nor the deceased could see the train in time to avoid the accident, it is for the jury to decide the questions whether the railway company was negligent and whether the deceased was contributorily negligent. Tennessee Cent. Ry. v. Dunn, 24 Tenn. App. 383, 145 S.W.2d 543, 1940 Tenn. App. LEXIS 42 (Tenn. App. Apr. 27, 1940).

When undisputed facts with all reasonable inferences to be drawn therefrom, lead to one conclusion, about which reasonable minds would not differ, that every possible means were employed to stop the train and prevent an accident after the obstruction appeared on the track, the case does not present a factual issue to be submitted to the jury. Southern Ry. v. Elliott, 250 F.2d 740, 1958 U.S. App. LEXIS 3495 (6th Cir. 1958).

47. —Instructions.

The court's charge that if the company complied with the statute, the plaintiff, if guilty of contributory negligence, directly or proximately contributing to the injury, cannot recover, was erroneous if construed to authorize the jury to inquire, after finding that the company had done everything required of it by statute, whether the plaintiff was guilty of negligence, and to require the jury to find that he was so guilty before the company could be exonerated from liability, and was of a nature calculated to confuse the jury. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907).

In an action based upon the defendant railroad company's statutory liability, it is error to charge anything upon the common-law liability, except insofar as the statute is concurrent with the common law, for such charge on the distinct common-law liability inevitably tends to confuse the jury. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907).

Where the declaration is under the statute, and a paragraph of the declaration attempts to state a common-law action, instructions that it was the duty of the defendant railroad to exercise “a high degree of vigilance and caution, commensurate with the dangerous character of said crossing,” by employing every means at its command as its train approached the crossing within the corporate limits of a town, were erroneous, because the statute covered the ground, and no other precautions could be required. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

In a common-law action against a railroad company for damages resulting from being struck by train, court properly refused to instruct jury that defendant did not have to give warning or put on brakes until plaintiff's truck became an obstacle on track or within striking distance of the train. Tennessee C. R. Co. v. Hayes, 9 Tenn. App. 116, — S.W.2d —, 1928 Tenn. App. LEXIS 222 (Tenn. Ct. App. 1928), overruled in part, Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 2008 Tenn. LEXIS 863 (Tenn. Nov. 14, 2008).

In statutory action for death, it was error to instruct that contributory negligence would reduce the recovery to nominal damages. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

Where a declaration is based on a common-law count and a statutory count, it was proper to refuse instructions correct as to one count but incorrect as to the other. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

The use of the word “negligence” in charging the jury on a violation of this section was not reversible error. Union Traction Co. v. Todd, 16 Tenn. App. 200, 64 S.W.2d 26, 1933 Tenn. App. LEXIS 3 (1933).

Court in railroad accident case should not charge jury that if railroad exceeded speed limit of city ordinance and employees failed to observe this section that the railroad would be liable whether or not violation of the ordinance was the proximate cause of the accident, where court did not charge elsewhere that violation of the ordinance by itself must be proximate cause to hold railroad liable. Louisville & N. R. Co. v. Farmer, 220 F.2d 90, 1955 U.S. App. LEXIS 3307 (6th Cir. Tenn. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955), cert. denied, Farmer v. Louisville & N. R. Co., 361 U.S. 840, 80 S. Ct. 83, 4 L. Ed. 2d 79, 1959 U.S. LEXIS 531 (1959).

48. —Verdict.

Where one of two counts of declaration alleged statutory cause of action, and other count alleged cause of action under common law, and there was evidence to sustain only the statutory count, general verdict was applicable to such sustained count. Tennessee Cent. Ry. v. Umenstetter, 155 Tenn. 235, 291 S.W. 452, 1926 Tenn. LEXIS 41 (1926).

49. —Review.

Where the trial court ruled that the statutory precautions did not apply and withdrew that question from the jury, and submitted the case on the common law and the city speed ordinance, and the jury returned a verdict for the plaintiff, the court of civil appeals, on reaching the conclusion that the statutory precautions did apply, and consequently that plaintiff's contributory negligence was not a bar, could not determine the question withdrawn from the jury as to whether the statutory precautions had been complied with, especially as the evidence was conflicting, and affirm the judgment so far as it fixed defendant's liability and reverse it only for a new assessment of damages. It could only pass on the question of precautions in reviewing the overruling of a motion for peremptory instructions or the withdrawal of such question from the jury. The court of civil appeals did not affirm any part of the action of the trial judge or the judgment based on the verdict. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

Where declaration in suit for damages arising out of railroad crossing accident alleged common-law negligence in count one, violation of this section for failure to keep crossing in repair in count four, and violation of this section in counts three and four for failure to sound whistle and to maintain a lookout, and trial court directed a verdict on the statutory counts, and there was a verdict by the jury in favor of the defendant on the common-law counts, both the first count and fourth count were passed upon by the jury and foreclosed consideration of the fourth count by the court on appeal. Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954).

50. Precautions at Public Crossings (Subdivisions (1), (2)).

51. —Construction of Statutory Provisions.

This statute is in part repugnant to the common law, and it undertakes to prescribe and define the entire duty of railroad companies at public crossings, as to giving warning of the approach of trains, and must prevail over the common law, insofar as it is repugnant to the common law. Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912); Southern R. Co. v. Noah, 180 Tenn. 532, 176 S.W.2d 826, 1944 Tenn. LEXIS 319 (1944).

The provision that no railroad engine driver shall be compelled to sound the whistle or bell at any public road crossing, where the proper signal has not been erected thereat by the overseer of the public road, was manifestly intended to relieve railroad companies from liability at such crossings not so designated. Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912); Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915); Steele v. Louisville & N.R.R., 154 Tenn. 208, 285 S.W. 582, 1926 Tenn. LEXIS 116 (1926); Louisville & N. R. Co. v. Ross, 2 Tenn. App. 384, 1926 Tenn. App. LEXIS 35 (1926).

The general assembly has complete power, as a proper police regulation, to prescribe the manner of giving warnings at crossings. Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S.W. 437, 1918 Tenn. LEXIS 59 (1918).

The provisions requiring signs and signals at crossings, while in derogation of the common law are also remedial in character, and are entitled to a construction which will not defeat the salutary purposes of their enactment. Stem v. Nashville I. Ry., 142 Tenn. 494, 221 S.W. 192, 1919 Tenn. LEXIS 77 (1919).

Where undisputed evidence showed that railroad crossing was not a designated crossing the statutory counts could not be maintained. Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954).

52. —Situations Not Covered.

53. — —Parallel Roads.

The statutory precautions at crossings are inapplicable to a parallel and nearby road, not crossing the railroad, and these do not apply in favor of parties not injured in crossing or attempting to cross a railroad, but who are injured while traveling along a public road near to, and parallel with, a railroad. East Tenn., V. & G.R.R. v. Feathers, 78 Tenn. 103, 1882 Tenn. LEXIS 150 (1882).

54. — —Boarding Trains.

Under a Georgia statute requiring the blowing of a whistle when approaching a public road crossing an employee of the railroad could not recover damages for injuries in boarding a moving train which failed to blow whistle, since employee was not traveling on the public road. Gully v. Western & Atl. R.R., 1 Shan. 383 (1875).

55. — —Running Into Side of Train.

This statute does not apply to a case of an automobile running into the side of a train at a crossing, so as to enable the occupants thereof to recover for the railroad company's nonobservance of this statute. Southern R. Co. v. Simpson, 149 Tenn. 458, 261 S.W. 677, 1923 Tenn. LEXIS 106 (1924); McCampbell v. Central of G. R. Co., 194 Tenn. 594, 253 S.W.2d 763, 1952 Tenn. LEXIS 426 (1952).

56. —Effect of Statute in Shelby County.

Provisions of this section were impliedly repealed, insofar as applicable to crossings in Shelby County, by Private Acts 1911, ch. 237, taking from the county court and vesting in the board of county commissioners jurisdiction of roads of every class in Shelby County, and by Private Acts 1913, ch. 32, § 8, conferring on the board of county commissioners of the county full power to regulate railroad crossings, and to require railroad companies, at their own expense, to grade and provide safeguards and regulations as to such crossings. Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S.W. 437, 1918 Tenn. LEXIS 59 (1918).

57. —Common-Law Standards of Care.

Where a public road is crossed by a railroad on an overhead bridge, no absolute duty rests upon the railroad company, either at common law or by statute, to give, by the usual signals, to travelers on the highway, reasonable warning of the approach of a train; but, if the place is dangerous, the company must warn travelers on the highway of the approach of its trains; and whether the place, as a matter of fact, is dangerous, is a question for the determination of the jury; and in the event the jury should find that danger was to be reasonably apprehended at the conjunction of the underpass and overhead bridge, then, as a matter of law, it was the duty of the railroad company to give warning of the approach of its trains. Louisville & N.R.R. v. Sawyer, 114 Tenn. 84, 86 S.W. 386, 1904 Tenn. LEXIS 73, 108 Am. St. Rep. 881, 69 L.R.A. 662 (1904).

It is doubtless true that, under the common law, a duty rests upon every railroad company at a road crossing where the view is obstructed or where there is much travel, to give warning of the approach of its trains, and that this duty at common law rests upon such railroad companies, whether the crossing be marked in any way or not. Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912).

Where the action for injuries on crossing is based on the common law, the proximate contributory negligence of the injured party bars a recovery. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916). See also Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917); Klein v. Illinois C. R. Co., 4 Tenn. App. 563, — S.W. —, 1927 Tenn. App. LEXIS 208 (Tenn. Ct. App. 1927).

A railroad company may be liable for death in a crossing accident by reason of common law negligence, notwithstanding there is no statutory liability under the statute requiring signs, signals, and lookouts for the prevention of such accidents. Stem v. Nashville I. Ry., 142 Tenn. 494, 221 S.W. 192, 1919 Tenn. LEXIS 77 (1919).

The standard of care that a railroad company is required to use in operating its trains across public roads of the state outside of towns and cities is fixed by the common law of the state. Illinois Cent. R.R. v. Davis, 32 F.2d 232, 1929 U.S. App. LEXIS 3756 (6th Cir. 1929).

A railway company's negligence in creating extra hazard by stacking or permitting the stacking of lumber so near its track and the crossing as to obscure the view and to require an additional warning as a protection against the obstruction was a question for the jury. Cincinnati, N.O. & T.P. Ry. v. Garrett, 25 Tenn. App. 173, 154 S.W.2d 435, 1941 Tenn. App. LEXIS 91 (1941).

A railroad does not have a license to commit other acts of common-law negligence, thus where the railroad did commit other acts of common-law negligence, such as excessive speed, it was not relieved of the duty to sound a warning at a public crossing even though the crossing had not been so marked by the county officials. Cincinnati, N.O. & T.P. Ry. v. Garrett, 25 Tenn. App. 173, 154 S.W.2d 435, 1941 Tenn. App. LEXIS 91 (1941); Jones v. Louisville & N.R.R., 192 Tenn. 570, 241 S.W.2d 572, 1951 Tenn. LEXIS 304 (1951).

58. —Erection of Signs.

Under Tennessee law railroads are not required to erect warning signs at crossings, that being the function of overseers of public roads. Wallace v. Louisville & N.R.R., 332 F.2d 97, 1964 U.S. App. LEXIS 5308 (6th Cir. 1964).

59. — —“Overseer” Defined.

A turnpike company is not the “overseer” of a public road in the sense of this statute. Louisville & N. Tpk. Co. v. State, 50 Tenn. 129, 1871 Tenn. LEXIS 74 (1871).

A municipal corporation is not such “overseer.” State v. Manchester, 62 Tenn. 416, 1874 Tenn. LEXIS 70 (1874).

60. — —Sufficiency of Sign.

Designation of a crossing by a sign in plain view of passing trains was sufficient, although the sign was some 50 feet from the crossing, but in plain view, and was not lettered on the side towards the railroad, and some of the letters on the other side had become obliterated. Western & A. R. Co. v. Roberson, 61 F. 592, 1894 U.S. App. LEXIS 2210 (6th Cir. Tenn. 1894).

Where some person other than the overseer of a public road crossed by a railroad erected at such crossing a sign with cross arms on which were the words “Railroad Crossing,” such erection is not a sufficient compliance with this statute, so as to render a railroad company liable for failure to sound the whistle or bell. Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912).

61. — —Failure to Erect Sign.

The failure of a turnpike company or municipal corporation to place the prescribed sign at the crossing is not a misdemeanor. Louisville & N. Tpk. Co. v. State, 50 Tenn. 129, 1871 Tenn. LEXIS 74 (1871); State v. Manchester, 62 Tenn. 416, 1874 Tenn. LEXIS 70 (1874).

The servants in charge of a train are not required to give any kind of warning of the approach of a train to a crossing not designated as required by the statutes. Southern Ry. v. Elder, 81 F. 791, 1897 U.S. App. LEXIS 1898 (6th Cir. 1897); Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904).

There is neither a statutory nor a common-law liability against railroad companies for failure to observe the statutory precautions at public road crossings not designated as required by the statute. Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912); Southern Ry. v. Campbell, 8 Tenn. Civ. App. 190 (1917).

A railroad company is not liable for a death in a crossing accident for its failure to blow its whistle at a distance of one fourth of a mile from the crossing, where such crossing had not been designated as a public road crossing by the required sign by the road overseers, as required by this section. Stem v. Nashville I. Ry., 142 Tenn. 494, 221 S.W. 192, 1919 Tenn. LEXIS 77 (1919).

Under the provisions of this section the absence of a crossing sign is a notice that extraordinary care should be exercised by a traveler desiring to cross. Southern R. Co. v. Noah, 180 Tenn. 532, 176 S.W.2d 826, 1944 Tenn. LEXIS 319 (1944).

Railroad was not required to sound whistle or bell at an “undesignated” crossing. Jones v. Louisville & N.R.R., 192 Tenn. 570, 241 S.W.2d 572, 1951 Tenn. LEXIS 304 (1951).

62. — —Sign Erected by Others Than Overseers.

Railroads are not required to sound the whistle or bell, at public road crossings, if the statutory signals have been erected by one not a public road overseer. Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904); Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912); Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

63. — —Custom to Sound Whistle.

Where a crossing was not designated as required by statute, so that the railroad company was not required to sound the whistle or bell at such crossing, evidence tending to show a custom of the company, subsequent to the collision, to blow the whistle at such crossing is inadmissible; but a custom to sound the whistle or bell at such crossing, before the accident, if known to plaintiff, would have some bearing upon the degree of his contributory negligence if he undertook to cross without stopping or looking, and under proper instruction so limiting the application, such evidence would be admissible. Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904).

64. — —Flagman at Crossing.

Requiring a railroad company, doing an interstate business, to maintain a flagman on a dangerous highway crossing, rather constantly traveled by night and day, is not an unreasonable burden on interstate commerce. Nashville, C. & S. L. Railway v. White, 278 U.S. 456, 49 S. Ct. 189, 73 L. Ed. 452, 1929 U.S. LEXIS 346 (1929).

65. —Duty of Train to Stop.

A person about to cross the track on horseback, on seeing an approaching train, attempted to turn his horse back, but the horse became unmanageable, and the rider was struck. Whether the failure of the engineer to make any attempt to stop the train rendered the railroad company liable for the death of such person was one of fact for the jury, there being evidence that when he was first seen by the engineer, the train was at such a distance that the speed might have been slackened, if not entirely stopped, before reaching the crossing. Louisville & N.R.R. v. Truett, 111 F. 876, 1901 U.S. App. LEXIS 4441 (6th Cir. 1901).

66. —Failure of Vehicle to Stop.

The charge of the trial judge, “while the duty of observing the statutory precautions is placed by the law of Tennessee on railroad companies, it is likewise the law that a person about to cross a railroad track is bound to recognize the danger incident thereto, and to stop, look, or listen for approaching trains,” is not erroneous under the facts of the case. Mincey v. Louisville & N.R.R., 2 Tenn. Civ. App. (2 Higgins) 142 (1911).

In case of injuries at a crossing, due to the collision of a train with an automobile, the driver of which did not stop, look, and listen for the train which gave no warning of its approach, the contributory negligence was a question for the jury. Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S.W. 437, 1918 Tenn. LEXIS 59 (1918).

When the driver of an automobile is absorbed in other matters, as in the management of his machine over a rough road, and if the jury should find that he was in the exercise of due care while so absorbed, it could not be said that he should be required to stop before entering upon a railroad track, existence and location of which he was unconscious; at least, it is a question of due care, and in cases in which the court cannot say that either party was guilty of negligence per se, it is a question for the jury. Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S.W. 437, 1918 Tenn. LEXIS 59 (1918).

Plaintiff driving automobile across railroad grade crossing without coming to a full stop as required by statute is not precluded from recovering for injuries when automobile was struck by train which failed to give required warnings when driver of auto exercised his intelligence to avoid injury. Tennessee C. R. Co. v. Page, 153 Tenn. 84, 282 S.W. 376, 1925 Tenn. LEXIS 7 (1926); Crawford v. Nashville, C. & St. L. Ry., 153 Tenn. 642, 284 S.W. 892, 1925 Tenn. LEXIS 50 (1925). But see Southern Ry. v. Brubeck, 6 Tenn. App. 493, 1927 Tenn. App. LEXIS 173 (1927).

Failure of an automobile to stop before proceeding over a railroad crossing is contributory negligence and should be taken into consideration by the jury in mitigation of damages, in an action on the statutory count provided in this section. Stricklin v. Louisville & N.R.R., 2 Tenn. App. 141, 1926 Tenn. App. LEXIS 18 (1926); Tennessee C. R. Co. v. Zearing, 2 Tenn. App. 451, — S.W. —, 1925 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1925).

In crossing accident damage suit, where plaintiff testified that he looked for the train but did not see it, but the evidence showed that if he looked he must have seen the train, he is guilty of such contributory negligence as will bar recovery under a common law count. Louisville & N.R.R. v. May, 5 Tenn. App. 100, 1927 Tenn. App. LEXIS 41 (1927).

Failure of driver of automobile to comply with Acts 1917, ch. 36 does not impose on him the burden of showing by a preponderance of the evidence that he has taken the precautions required of him by law to avert a collision at such crossing before he can recover any damages for injuries from collision thereon. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

An openly visible defective condition of the crossing, whether regarded as due to defendant's negligence or not, cannot excuse an attempt to cross directly in front of an approaching train. Cincinnati, N. O. & T. P. R. Co. v. Galloway, 59 F.2d 664, 1932 U.S. App. LEXIS 3439 (6th Cir. Tenn. 1932).

67. —Actions for Crossing Accidents.

68. — —Pleadings.

Where the plaintiff alleged in her declaration that the road where the accident occurred was a “public road,” she cannot, without amending her declaration, be heard to claim that the road was a private one, even if it be conceded that such question is material. Southern Ry. v. Elder, 81 F. 791, 1897 U.S. App. LEXIS 1898 (6th Cir. 1897).

69. — —Trial and Evidence.

The burden of proof is upon the plaintiff to prove that a public crossing has been designated as such by the statutory danger signals; but when plaintiff has proved this fact, the burden is upon the railroad company to prove that the bell and whistle were sounded as prescribed by the statute, on approaching such crossing. Alabama G. S. R. Co. v. McDonough, 97 Tenn. 255, 37 S.W. 15 (1896); Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912). See Stricklin v. Louisville & N.R.R., 2 Tenn. App. 141, 1926 Tenn. App. LEXIS 18 (1926).

The burden of proof is upon the plaintiff to prove that the particular crossing is a designated crossing, and once it has been proved then the railroad company has the burden of proof to show compliance with statutory requirements. Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954).

70. — —Review.

In action for death at railroad crossing, where declaration was in three counts and verdict of jury was general, counts alleging failure of defendant to observe statutory precautions and to furnish and maintain good and sufficient crossings will not be considered on appeal where the trial court did not approve the verdict as to such counts. Tennessee C. R. Co. v. Melvin, 5 Tenn. App. 85, — S.W. —, 1927 Tenn. App. LEXIS 40 (Tenn. Ct. App. 1927).

71. Precautions Upon Approaching Cities and Towns (Former subdivision (3), deleted by amendment).

72. —Construction.

There is no authority or necessity for extending or qualifying the meaning of the terms used in this statute, or for giving any strained construction to it. Webb v. East Tenn., V. & G.R.R., 88 Tenn. 119, 12 S.W. 428, 1889 Tenn. LEXIS 36 (1889).

It was not error for district court to hold that former subdivision (3) (deleted by amendment) was applicable even though the appellee had jumped from truck before collision. Southern Ry. v. Clevenger, 243 F.2d 764, 1957 U.S. App. LEXIS 2987 (6th Cir. 1957).

73. —Cities, Towns and Trains Covered.

This statute, as to approaching trains as well as to departing trains, applies alone to incorporated towns or cities, and not to unincorporated towns. Webb v. East Tenn., V. & G.R.R., 88 Tenn. 119, 12 S.W. 428, 1889 Tenn. LEXIS 36 (1889); Felton v. Newport, 92 F. 470, 1899 U.S. App. LEXIS 2158 (6th Cir. 1899); Felton v. Newport, 105 F. 332, 1900 U.S. App. LEXIS 3833 (6th Cir. 1900); Louisville & N.R.R. v. Collier, 104 Tenn. 189, 54 S.W. 980, 1899 Tenn. LEXIS 27 (1899); Southern Ry. v. Griffin, 129 Tenn. 558, 167 S.W. 688, 1914 Tenn. LEXIS 145 (1914).

Proof of the incorporation of the town, in which the injury occurred, is essential to the plaintiff's case; and where the record of incorporation, which is the best evidence of the fact, is not introduced, but oral testimony tending to show user of corporate franchises by the town is admitted, without objection, conceding such evidence to be competent in such case to raise a presumption of incorporation, the question of its sufficiency is one for the jury. An instruction which makes the defendant liable, under the further provisions of the statute, if it failed to sound the bell or whistle as required, without requiring the jury first to find the fact of incorporation, is erroneous. Felton v. Newport, 92 F. 470, 1899 U.S. App. LEXIS 2158 (6th Cir. 1899), aff'd, Felton v. Newport, 105 F. 332, 1900 U.S. App. LEXIS 3833 (6th Cir. 1900).

These precautions must be observed on trains of a railroad company on approaching or leaving a town incorporated under the laws of this state, and situated, wholly or in part, within this state, although the railroad station for such town may be located in another state. Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900).

While the court will take judicial notice or knowledge of the fact of the incorporation of city incorporated by statute, it cannot take judicial notice of the location of the boundaries thereof. Alexander v. Virginia & S.W. Ry., 139 Tenn. 52, 201 S.W. 134, 1917 Tenn. LEXIS 87 (1917).

The application of subsection (3) (deleted by amendment) is limited to trains being operated in cities and towns. Illinois Cent. R.R. v. Davis, 32 F.2d 232, 1929 U.S. App. LEXIS 3756 (6th Cir. 1929).

Requirement of subsection (3) (deleted by amendment) applies to through trains which do not stop at an incorporated town or city, as well as to local trains that do stop. Southern Ry. v. Griffin, 129 Tenn. 558, 167 S.W. 688, 1914 Tenn. LEXIS 145 (1914); Illinois C. R. Co. v. Sigler, 122 F.2d 279, 1941 U.S. App. LEXIS 2953 (6th Cir. Tenn. 1941).

74. —Corporate Limits.

Location of corporate limits must be established. The statement of a witness that the whistle was not sounded “until it blew inside the corporation here” does not locate the limits or boundaries, nor establish defendant's failure to comply with this statute, as to giving signals before reaching and while passing through incorporated cities. Alexander v. Virginia & S.W. Ry., 139 Tenn. 52, 201 S.W. 134, 1917 Tenn. LEXIS 87 (1917).

75. —Blowing Whistle and Sounding Bell.

There is no appreciable difference between the words “short intervals” and the word “intervals,” and it is not reversible error in the circuit judge's charge to use the words “short intervals” where the statute uses the word “intervals.” Louisville & N.R.R. v. Gardner, 69 Tenn. 688, 1878 Tenn. LEXIS 159 (1878).

76. — —One Mile Distance.

The distance of one mile, for sounding the bell or whistle, on approaching a city or town, is to be measured from the corporate limits, and not from the depot or station. Webb v. East Tenn., V. & G.R.R., 88 Tenn. 119, 12 S.W. 428, 1889 Tenn. LEXIS 36 (1889); Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900); Illinois C.R.R. v. Perkins, 223 Miss. 891, 79 So. 2d 459, 1955 Miss. LEXIS 453 (1955).

A railroad company may be liable though the injury was at a place between the one mile whistling post and the limits of the incorporated town, although the station itself is not within the corporate limits. Illinois C.R.R. v. Adams, 2 Tenn. Civ. App. (2 Higgins) 118 (1911).

Statute requiring that when railroad train is approaching a town or city the bell or whistle shall be sounded when the train is at a distance of one mile and at short intervals until it reaches the station, applies only to accidents within corporate limits, and not to injury received outside the corporate limits of incorporated towns. Stricklin v. Louisville & N.R.R., 2 Tenn. App. 141, 1926 Tenn. App. LEXIS 18 (1926); Nashville, C. & St. L. Ry. v. Brymer, 22 Tenn. App. 468, 124 S.W.2d 261, 1938 Tenn. App. LEXIS 47 (1938).

77. — —Effect as to Passengers.

Blowing of whistle and sounding of bell on approach to town as required by this section is not an express or implied invitation to passenger to alight and passenger standing on rear platform who did so could not recover damages when train suddenly lurched forward. Townsend v. Railroad, 106 Tenn. 162, 61 S.W. 56, 1900 Tenn. LEXIS 144 (Tenn. 1900).

78. — —Ordinances.

A city cannot, by an ordinance prohibiting the blowing of the steam whistle by a railroad engine, and making the violation of the ordinance a misdemeanor, nullify and render of no effect this statute. Katzenberger v. Lawo, 90 Tenn. 235, 16 S.W. 611, 1891 Tenn. LEXIS 15, 25 Am. St. Rep. 681, 13 L.R.A. 185 (1891).

79. — —Failure to Use Precautions.

Where there is a failure, on approaching or leaving an incorporated town or city, to comply with this statute, by sounding the bell or whistle within one mile of the corporation line, and at short intervals and a collision occurs, by which a person is killed or injured, the railroad company will be liable for damages for statutory negligence, though all the other statutory precautions are complied with. Louisville & N. R. Co. v. Howard, 90 Tenn. 144, 19 S.W. 116, 1891 Tenn. LEXIS 4 (1891); Byrne v. Kansas City, Ft. S. & M. R. Co., 61 F. 605, 1894 U.S. App. LEXIS 2211, 24 L.R.A. 693 (6th Cir. Tenn. 1894). See Louisville & N.R.R. v. Gardner, 69 Tenn. 688, 1878 Tenn. LEXIS 159 (1878).

Failure to sound the bell or whistle, at the distance of one mile from the town which was the scene of the accident, is not cured or obviated by the sounding at short intervals for one half or three quarters of a mile before reaching the town. Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900).

80. — —Pleadings.

An averment that, at a road crossing in an incorporated town in Tennessee, defendant railroad company “did wrongfully, carelessly, and negligently run one of its engines and a train of cars upon, against, and over” plaintiff's husband, and by reason of which he died, is sufficient to give notice that the failure to observe the provisions of this statute will be relied on. Kennedy v. Southern Ry., 2 Tenn. Civ. App. (2 Higgins) 103 (1911).

Railroad was not liable for failure of its employees to ring bell or sound whistle within corporate limits of town, where such failure was not averred as a ground of negligence in the declaration. Nashville, C. & St. L. Ry. v. Brymer, 22 Tenn. App. 468, 124 S.W.2d 261, 1938 Tenn. App. LEXIS 47 (1938).

81. — —Contributory Negligence.

Driver of automobile who knew danger of the crossing and that when a car reached a few feet of the track, the track could be seen in both directions for a long distance, although it could not be seen before that time, was contributorily negligent, when his car was almost stopped when it passed on the track and was hit. Klein v. Illinois C. R. Co., 4 Tenn. App. 563, — S.W. —, 1927 Tenn. App. LEXIS 208 (Tenn. Ct. App. 1927).

Where plaintiff's decedent was walking toward the train in what he thought a safe path and after part of the train had passed he went under the same and was killed, the railroad is not liable for his death because the engine did not sound its whistle or ring its bell. Southern R. Co. v. Matthews, 29 F.2d 52, 1928 U.S. App. LEXIS 2610 (6th Cir. Tenn. 1928), cert. denied, 279 U.S. 844, 49 S. Ct. 264, 73 L. Ed. 989, 1929 U.S. LEXIS 178 (1929), cert. denied, Matthews v. Southern R. Co., 279 U.S. 844, 49 S. Ct. 264, 73 L. Ed. 989, 1929 U.S. LEXIS 178 (1929).

In an action by an administrator to recover for the death of his intestate caused by a collision between an automobile in which the intestate was riding and defendant's train which occurred at an intersection where the view of the automobile driver was greatly restricted due to buildings and a curve in the railroad track, it was for the jury to determine if the defendant was negligent and if plaintiff was guilty of contributory negligence. Tennessee Cent. Ry. v. Dunn, 24 Tenn. App. 383, 145 S.W.2d 543, 1940 Tenn. App. LEXIS 42 (Tenn. App. Apr. 27, 1940).

82. — —Evidence.

Testimony of witnesses who stated that they were in a position to hear and observe, and that they did not hear whistle or bell as train approached station, held not negative evidence, but competent to prove that statute, requiring railroad to give warning, was not complied with. Tennessee C. R. Co. v. Page, 153 Tenn. 84, 282 S.W. 376, 1925 Tenn. LEXIS 7 (1926); Poe v. Atlantic C.L.R.R., 205 Tenn. 276, 326 S.W.2d 461, 1959 Tenn. LEXIS 363 (1959).

In an action to recover for the wrongful death of plaintiff's intestate resulting from a collision between a train and an automobile in which the intestate was riding, evidence of similar accidents at the same place was admissible not only to show the dangerous character of the place but also to show that knowledge thereof had been brought to the attention of those responsible therefor. Illinois C. R. Co. v. Sigler, 122 F.2d 279, 1941 U.S. App. LEXIS 2953 (6th Cir. Tenn. 1941).

Evidence held to show causal connection between violation of former subdivision (3) (deleted by amendment) of this section and accident. Southern Ry. v. Kuykendall, Tenn. App., 186 S.W.2d 617, 1944 Tenn. App. LEXIS 66 (1944).

83. — —Instructions.

In an action to recover damages for injury to a traction engine, the court's charge that the whistle must be sounded or the bell rung one mile from the corporate limits and at short intervals thereafter until the train reached the station, and, in a subsequent part, that it was the duty of the company to sound the whistle or ring the bell until the train reached the place of the accident, was not confusing, as containing statements in conflict with each other. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907).

In an action for a wrongful death at a railroad crossing within the corporate limits of a town, it is reversible error to refuse a special request by defendant to charge that it was the duty of the jury to mitigate the damages if they should find that the deceased was guilty of contributory negligence, and that they should measure this reduction of damages in proportion to the degree of such contributory negligence, whether slight or gross. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

In action against railroad for personal injuries and damage to automobile struck at railroad crossing, charge that if railroad had violated the precautionary safe driving statutes, negligence of plaintiff would not bar recovery but would go in mitigation of the damages was not imperative enough since jury must mitigate the damages in such cases. Poe v. Atlantic C.L.R.R., 205 Tenn. 276, 326 S.W.2d 461, 1959 Tenn. LEXIS 363 (1959).

84. Prevention of Accidents — If Obstructions on Track (Subdivision (3)).

85. —Construction.

The statute for the prevention of accidents, insofar as it prescribes precautions to be observed in watching the track and avoiding collisions with persons or animals on the track, embodies no more than the common law demands at the hands of every citizen. Horne v. Memphis & O.R.R., 41 Tenn. 72, 1860 Tenn. LEXIS 17 (1860); East Tenn., V. & G.R.R. v. Humphreys, 80 Tenn. 200, 1883 Tenn. LEXIS 158 (1883), criticized, Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); East Tenn., V. & G.R.R. v. Pratt, 85 Tenn. 9, 1 S.W. 618, 1886 Tenn. LEXIS 3 (1886); Memphis & C.R.R. v. Scott, 87 Tenn. 494, 11 S.W. 317 (1889); Patton v. Railway Co., 89 Tenn. 370, 15 S.W. 919, 1890 Tenn. LEXIS 59, 12 L.R.A. 184 (1890); Katzenberger v. Lawo, 90 Tenn. 235, 16 S.W. 611, 1891 Tenn. LEXIS 15, 25 Am. St. Rep. 681, 13 L.R.A. 185 (1891); Little Rock & M.R.R. v. Wilson, 90 Tenn. 271, 16 S.W. 613, 1891 Tenn. LEXIS 18, 25 Am. St. Rep. 693, 13 L.R.A. 364 (1891); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909); Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912); Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

Considering the character of machinery necessary to carry on the operations of a railroad and its capacity and liability to work hurt and injury to persons and property, this statute is a proper one, and should be rigidly enforced. E. T. V. & G. R.R. Co. v. Scales, 70 Tenn. 688, 1879 Tenn. LEXIS 223 (1879); East T. & V. R.R. Co. v. Swaney, 73 Tenn. 119, 1880 Tenn. LEXIS 95 (1880); Louisville & N. R. Co. v. Howard, 90 Tenn. 144, 19 S.W. 116, 1891 Tenn. LEXIS 4 (1891); Southern Ry. v. Sutton, 179 F. 471, 1910 U.S. App. LEXIS 4665 (6th Cir. 1910).

86. —Definitions.

The “road,” in contemplation of the statute, is not merely what is called strictly the roadbed or track, but extends so far as there is danger of the obstruction being struck or injured by the engine or train while moving on the rails, though it does not extend to the whole right of way. Nashville & C. R.R. Co. v. Anthony, 69 Tenn. 516, 1878 Tenn. LEXIS 129 (1878); Louisville N. & G. S. R.R. Co. v. Reidmond, 79 Tenn. 205, 1883 Tenn. LEXIS 44 (1883); Byrne v. Kansas City, Ft. S. & M. R. Co., 61 F. 605, 1894 U.S. App. LEXIS 2211, 24 L.R.A. 693 (6th Cir. Tenn. 1894); Rogers v. Cincinnati, N.O. & T.P. Ry., 136 F. 573, 1905 U.S. App. LEXIS 4493 (6th Cir. 1905); Southern Ry. v. Sutton, 179 F. 471, 1910 U.S. App. LEXIS 4665 (6th Cir. 1910); Southern Ry. v. Harris, 9 Tenn. App. 589, 1929 Tenn. App. LEXIS 115 (1929).

The duties of those in charge of a train to observe the requirements of the statute are not confined to the very time the accident occurs. They commence when the obstruction “appears” upon the road, and “the road” in contemplation of the statute is not merely what is called strictly the roadbed or track, but also includes the public approaches thereto, and it is the duty of the lookout to view the whole road within the orbit of his vision. Majestic v. Louisville & N. R. Co., 147 F.2d 621, 1945 U.S. App. LEXIS 2180 (6th Cir. Tenn. 1945).

87. —Application.

The provisions of former subdivision (3) apply only to the injury of persons or property while on the roadbed, and have no application to the injury of a passenger caused by an obstruction on the right of way. Louisville & N.R.R. v. McKenna, 75 Tenn. 313, 1881 Tenn. LEXIS 122 (1881).

The statutes contained in subdivision (3) and in § 65-12-109 do not apply against a railroad construction contractor and in favor of his employee, especially while riding on the pilot of the engine of the construction train, without the knowledge or direction of the contractor. Griggs v. Houston, 104 U.S. 553, 26 L. Ed. 840, 1881 U.S. LEXIS 2044 (1881).

In the absence of some special circumstances, it would seem that subdivision (3) does not apply where the collision is with the side of the train instead of the object being in front of the train. Curtis v. Louisville & N.R.R., 232 F. 109, 1916 U.S. App. LEXIS 1795 (6th Cir. 1916); Southern R. Co. v. Simpson, 149 Tenn. 458, 261 S.W. 677, 1923 Tenn. LEXIS 106 (1924), compare with Southern Ry. v. Brubeck, 6 Tenn. App. 493, 1927 Tenn. App. LEXIS 173 (1927); Southern Ry. v. Buskill, 10 Tenn. App. 1, 1927 Tenn. App. LEXIS 1 (1927).

The purpose of subdivision (3) is to prevent collision of objects already on the track ahead of the train while the other subsections were designed to prevent accidents between trains and objects approaching the track. Ori v. St. Louis S. F. R. Co., 48 Tenn. App. 448, 348 S.W.2d 809, 1961 Tenn. App. LEXIS 86 (1961).

Subdivision (3) was inapplicable where automobile was driven upon the tracks in front of the moving train and there was no opportunity to observe the statutory precautions. Ori v. St. Louis S. F. R. Co., 48 Tenn. App. 448, 348 S.W.2d 809, 1961 Tenn. App. LEXIS 86 (1961); Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962).

Having established that a person appeared as an obstruction on the track and that a railroad failed to comply with the requirements of subdivision (3), liability is visited upon the railroad by § 65-12-109, providing the railroad “shall be responsible for all damages to person or property occasioned by, or resulting from, any accident or collision that may occur.” Gilreath v. Southern R. Co., 323 F.2d 158, 1963 U.S. App. LEXIS 4124 (6th Cir. Tenn. 1963).

88. —Safety of Road and Equipment.

It is the duty of a railroad company or its receiver to see that its road is in good order and safe, and that its engines, machinery, apparatus, and cars are in as safe and suitable condition as care and skill can make them; and a railroad company will be responsible in damages for any injury resulting from defects therein, of which it had knowledge, or which might have been discovered by the company or its agents, by the proper care and skill in the application of the ordinary and approved tests. Nashville & C.R.R. v. Elliott, 41 Tenn. 611, 1860 Tenn. LEXIS 114 (1860); Louisville & N. R. Co. v. Connor, 56 Tenn. 19, 1871 Tenn. LEXIS 423 (1871); Nashville & D. R. Co. v. Jones, 56 Tenn. 27, 1871 Tenn. LEXIS 424 (1871); Erwin v. Davenport, 56 Tenn. 44, 1871 Tenn. LEXIS 425 (1871); E. T. Va. & Ga. R. Co. v. Hodges, 1 Shan. 434 (1875); Nashville, C. & S. L. Railway v. Foster, 78 Tenn. 351, 1882 Tenn. LEXIS 191 (1882); Guthrie v. Louisville & N. R.R. Co., 79 Tenn. 372, 1883 Tenn. LEXIS 75, 47 Am. Rep. 286 (1883); East T., V. & G. R.R. Co. v. Gurley, 80 Tenn. 46, 1883 Tenn. LEXIS 138 (1883); East Tenn., V. & G.R.R. v. Aiken, 89 Tenn. 245, 14 S.W. 1082 (Tenn. Sep. 1890); Illinois Cent. R.R. v. Kuhn, 107 Tenn. 106, 64 S.W. 202, 1901 Tenn. LEXIS 63 (1901). But see Louisville & N.R.R. v. Bohan, 116 Tenn. 271, 94 S.W. 84, 1905 Tenn. LEXIS 23 (1905).

A railroad company is chargeable with the knowledge of a defect in its road or machinery possessed by an engineer in its employment. Nashville & C.R.R. v. Elliott, 41 Tenn. 611, 1860 Tenn. LEXIS 114 (1860).

A railroad company is not required to insure its machinery against the negligence of the manufacturer. If the defects are such that they cannot be discovered by the railroad company or its agents, after a careful and skillful application of the ordinary and approved tests, then the company will not be held responsible, although it may appear that the defects might have been discovered by the manufacturers, by applying the proper tests. Nashville & D. R. Co. v. Jones, 56 Tenn. 27, 1871 Tenn. LEXIS 424 (1871); East Tenn., V. & G.R.R. v. Smith, 77 Tenn. 685, 1882 Tenn. LEXIS 123 (1882).

It is the duty of the railroad company to furnish the best equipment the state of the art affords, and this rule is applicable to every appointment of the locomotive. Fitch v. Louisville & N.R.R., 3 Shan. 676 (1875); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900).

The railroad company is not bound to adopt every new improvement, although it may be safe. It is sufficient that the whole running stock is in safe condition or good order. Nashville, C. & S. L. Railway v. Foster, 78 Tenn. 351, 1882 Tenn. LEXIS 191 (1882).

89. — —Headlights.

The engine must, in the nighttime, be supplied with the best headlight the state of art affords. Nashville & C.R.R. v. Smith, 53 Tenn. 174, 1871 Tenn. LEXIS 339 (Tenn. Sep. 30, 1871); Nashville & C.R.R. v. Smith, 58 Tenn. 455, 1872 Tenn. LEXIS 285 (1872); Fitch v. Louisville & N.R.R., 3 Shan. 676 (1875); Louisville & N.R.R. v. Melton, 70 Tenn. 262, 1879 Tenn. LEXIS 172 (1879); Memphis C. R.R. Co. v. Logue, 81 Tenn. 32, 1884 Tenn. LEXIS 5 (1884).

A headlight enabling the engineer to see ahead 100 yards while running at night, although not enabling him to see on either side of the track, at any great distance, is sufficient. Louisville & N.R.R. v. Stone, 54 Tenn. 468, 1872 Tenn. LEXIS 74 (1872).

If the light becomes obscure from rain or other natural causes, without any defect in the headlight and appurtenances, and without any fault upon the part of the employees of the railroad company, so that the lookout cannot see ahead, it is error to instruct the jury that the railroad company is, as a matter of law, liable for all the consequences for running a train on such a night. Louisville & N.R.R. v. Melton, 70 Tenn. 262, 1879 Tenn. LEXIS 172 (1879). See Memphis C. R.R. Co. v. Logue, 81 Tenn. 32, 1884 Tenn. LEXIS 5 (1884).

A headlight is not required in daytime. Such equipment would not add to the effectiveness of the lookout, and cannot by implication, be added to the requirement of the statute, under such conditions. Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904).

90. —Duty to Maintain Lookout.

The phrase “lookout ahead” is treated as equivalent to lookout for objects “ahead on the track.” East T. & G. R. Co. v. St. John, 37 Tenn. 524, 1858 Tenn. LEXIS 55 (1858); Cincinnati, N.O. & T.P. Ry. v. Wright, 133 Tenn. 74, 179 S.W. 641, 1915 Tenn. LEXIS 75 (1915).

“Always upon the lookout ahead” means only that the precaution is being observed when the accident occurs, and does not mean that the precaution should have been observed all the way; and it is reversible error not to so explain this language in the charge to the jury, where it is proved that the precaution was being observed when the accident occurred. Louisville & N.R.R. v. Stone, 54 Tenn. 468, 1872 Tenn. LEXIS 74 (1872).

“Lookout ahead” means lookout in the direction in which the engine is moving. Patton v. Railway Co., 89 Tenn. 370, 15 S.W. 919, 1890 Tenn. LEXIS 59, 12 L.R.A. 184 (1890).

The duties of the persons on the engine arise under the statute, except as to the maintenance of the lookout, only when the obstruction appears on the track or within lateral striking distance of the train, and, if there is not time to do everything the statute requires, then the engineer must do those things first which are best calculated to prevent the accident. Cincinnati, N. O. & T. P. R. Co. v. Galloway, 59 F.2d 664, 1932 U.S. App. LEXIS 3439 (6th Cir. Tenn. 1932).

Duty to maintain lookout is mandatory and it is no defense that accident would have occurred even though statutory requirement was followed. Louisville & N.R.R. v. Tucker, 211 F.2d 325, 1954 U.S. App. LEXIS 2554 (6th Cir. 1954), rehearing denied, 215 F.2d 227, 1954 U.S. App. LEXIS 2824 (6th Cir. Tenn. Aug. 31, 1954).

Railroad company will be liable under this section if its lookout fails to see what due care would have revealed and therefore fails to observe other requirements of the section. Louisville & N. R. Co. v. Farmer, 220 F.2d 90, 1955 U.S. App. LEXIS 3307 (6th Cir. Tenn. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955), cert. denied, Farmer v. Louisville & N. R. Co., 361 U.S. 840, 80 S. Ct. 83, 4 L. Ed. 2d 79, 1959 U.S. LEXIS 531 (1959).

Where engineer and fireman saw plaintiff lying near track as soon as headlight shown upon him evidence was sufficient to show that a proper lookout was kept. Page v. Tennessee Cent. Ry., 42 Tenn. App. 646, 305 S.W.2d 263, 1956 Tenn. App. LEXIS 147 (1956).

91. — —Common-Law Standard.

While a railroad company may not be liable for a personal injury caused by its failure to maintain a lookout, because of the impossibility of doing so under the condition in which its train was being operated at the time of the accident, it may nevertheless be liable, because of the breach of its common law duty to the party injured in negligently managing its train after it knew that deceased was on its tracks and in a place of danger. Towles v. Southern R. Co., 103 F. 405, 1900 U.S. App. LEXIS 4816 (C.C.D. Tenn. 1900).

Under the common law, it would be the duty of a railroad company's servants to keep a lookout ahead, and also to have reasonable appliances, including a headlight of reasonable efficiency, and it would be their duty, on the appearance of any obstruction on the track, to use their utmost endeavors to prevent a collision, and also to see what could be seen by a person of good eyesight, with the aid of a proper headlight, or a proper light on the back of the engine when running backwards. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

92. — —Application.

This section requiring lookout on locomotive has particular reference to locomotive with train attached. Gordon v. Tennessee C. R. Co., 167 Tenn. 302, 69 S.W.2d 611, 1933 Tenn. LEXIS 41 (1934).

Provision requiring lookout on locomotive does not apply to four wheel concern identified as a handcar. Gordon v. Tennessee C. R. Co., 167 Tenn. 302, 69 S.W.2d 611, 1933 Tenn. LEXIS 41 (1934).

93. — —Locomotive at Rear of Cars.

There was substantial compliance with the provisions of subdivision (3) with respect to train of five passenger cars which was being pushed by locomotive where platform of car which constituted front of train had a headlight equivalent of the headlight on the locomotive and equipment for blowing the whistle, ringing the bell and applying the air brakes for the entire train including the locomotive at the rear. Ori v. St. Louis S. F. R. Co., 48 Tenn. App. 448, 348 S.W.2d 809, 1961 Tenn. App. LEXIS 86 (1961).

94. — —Backing Operations.

A railroad company is liable in damages for the killing of a person upon its track by a backing engine and tender, not switching in the railroad yards. The statute applies in such case, and the railroad company is not excused because it runs its engine and tender in such manner as to preclude the possibility of observance of the statutory precautions. Iron M. R. Co. v. Dies, 98 Tenn. 655, 41 S.W. 860 (1897); Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904); Cincinnati, N.O. & T.P. Ry. v. Davis, 161 F. 334, 1908 U.S. App. LEXIS 4354 (6th Cir. 1908).

A railroad company is absolutely liable for injuries to persons riding upon an automobile truck struck by a train running backward over a highway crossing, with numerous cars being pushed backward and ahead of the engine, so that the railroad company was unable to perform the duty imposed upon it by this statute requiring some person upon the locomotive always to be on the lookout ahead. Louisville & N.R.R. v. Mayers, 147 Tenn. 315, 247 S.W. 89, 1922 Tenn. LEXIS 43 (1922).

When a train is not engaged in a switching operation, the voluntary act of the railroad company in placing the locomotive at the rear of a train of cars, thereby making it impossible to keep the lookout ahead required by this section, renders absolute defendant's liability for injuries to plaintiff and his automobile, where plaintiff's automobile was an obstruction on the track in front of the train. Tennessee C. R. Co. v. Zearing, 2 Tenn. App. 451, — S.W. —, 1925 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1925).

Boy aged 16 pinned between building and tracks by backing train was entitled to recover damages for injuries since duty to maintain lookout could not be fulfilled. Belt Ry. v. Vaughn, 16 Tenn. App. 590, 65 S.W.2d 580, 1933 Tenn. App. LEXIS 31 (1933).

This statute is complied with only when a train is moving forward by means of an engine at its front; and there is absolute liability upon a railway company for injuries inflicted when its train is moving backward, or by means of an engine placed elsewhere than in front. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

95. — —Switching Operations.

Statutory requirement to maintain lookout does not apply to switching movements on a spur track. Louisville & N.R.R. v. Jones, 1 Tenn. Civ. App. (1 Higgins) 305 (1910).

Subdivision (3) did not apply to switching operations in the railroad's yard. Tennessee C. R. Co. v. Dial, 16 Tenn. App. 646, 65 S.W.2d 610, 1933 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1933).

Where appellant's intestate was struck by a train while the train was engaged in switching operations his rights were determined by the common law and not by the statutory law. Lawson v. Tennessee, A. & G. Ry., 159 F.2d 65, 1947 U.S. App. LEXIS 2434 (6th Cir. 1947).

Switching operations of a train can occur only within the company yards, the depot grounds or on side tracks. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

Subdivision (3) does not apply, and there can be no recovery under it, when the train is engaged in a switching operation. Morgan v. Tennessee C. R. Co., 31 Tenn. App. 409, 216 S.W.2d 32, 1948 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1948).

Switching operation was subject to lookout requirement at public crossing outside of switchyard. Louisville & N.R.R. v. Tucker, 211 F.2d 325, 1954 U.S. App. LEXIS 2554 (6th Cir. 1954), rehearing denied, 215 F.2d 227, 1954 U.S. App. LEXIS 2824 (6th Cir. Tenn. Aug. 31, 1954).

96. — —Position of Lookout.

The lookout ahead must have good eyesight, and must occupy a position to enable him to see ahead to the best advantage. Nashville & C.R.R. v. Smith, 53 Tenn. 174, 1871 Tenn. LEXIS 339 (Tenn. Sep. 30, 1871); Louisville & N.R.R. v. Melton, 70 Tenn. 262, 1879 Tenn. LEXIS 172 (1879); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900).

The lookout must be in such position on the locomotive as to enable him to see ahead to the best advantage, and he must be vigilant and watchful. If, from that position, the object is visible, and yet is not seen, the jury would be well warranted in finding that the person was not on the lookout, and that he was not vigilant. A lookout who does not see what, with due care and vigilance, should have been seen, would not be in the discharge of his duty, and would not be the lookout prescribed by this statute, and it is not reversible error to so charge. Nashville & C.R.R. v. Nowlin, 69 Tenn. 523, 1878 Tenn. LEXIS 131 (1878); E. T. V. & G. R.R. v. White, 73 Tenn. 540, 1880 Tenn. LEXIS 178 (1880); Felton v. Newport, 105 F. 332, 1900 U.S. App. LEXIS 3833 (6th Cir. 1900); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900).

97. — —Area of Lookout.

The lookout must watch ahead of the train, but he need not watch behind it. Moran v. Nashville & C.R.R., 61 Tenn. 379, 1872 Tenn. LEXIS 384 (1872); Patton v. Railway Co., 89 Tenn. 370, 15 S.W. 919, 1890 Tenn. LEXIS 59, 12 L.R.A. 184 (1890).

Enginemen, when on a curve, are not required to look across the intervening space to the farther end of the curve, thereby withdrawing the lookout from the track immediately ahead. Cincinnati, N.O. & T.P. Ry. v. Wright, 133 Tenn. 74, 179 S.W. 641, 1915 Tenn. LEXIS 75 (1915).

Duty to maintain lookout includes cars within area of public approach to crossing. Louisville & N.R.R. v. Tucker, 211 F.2d 325, 1954 U.S. App. LEXIS 2554 (6th Cir. 1954), rehearing denied, 215 F.2d 227, 1954 U.S. App. LEXIS 2824 (6th Cir. Tenn. Aug. 31, 1954).

If approaching car was within lookout's area of view of crossing of railroad, but car was not observed, the railroad was liable though there was no time to avoid accident once the car was upon the crossing. Louisville & N.R.R. v. Tucker, 211 F.2d 325, 1954 U.S. App. LEXIS 2554 (6th Cir. 1954), rehearing denied, 215 F.2d 227, 1954 U.S. App. LEXIS 2824 (6th Cir. Tenn. Aug. 31, 1954).

98. — —Duties of Engineer and Fireman.

Formerly it was held if the engineer cannot see, the fireman must; if the fireman cannot see, the engineer must; if neither can see, some other person must. Louisville & N.R.R. v. Stone, 54 Tenn. 468, 1872 Tenn. LEXIS 74 (1872); Nashville & C.R.R. v. Nowlin, 69 Tenn. 523, 1878 Tenn. LEXIS 131 (1878); E. T. V. & G. R.R. v. White, 73 Tenn. 540, 1880 Tenn. LEXIS 178 (1880); Southern Ry. v. Brubeck, 6 Tenn. App. 493, 1927 Tenn. App. LEXIS 173 (1927), but this holding has been liberalized to the extent that if the exigencies of the situation require it, a temporary absence of vigilance is excusable.

It is the imperative duty of the engineer, or other person in charge, to comply with the precautions of the statute as soon as a person is seen on the track; and the engineer must not presume that the person will step off the track on the approach of the train, as it is not known what might be the effect of the alarm whistle, even upon the maudlin brain of a drunken man, nor can it be conjectured whether the timely startle of the alarm whistle might not save his life. Hill v. Louisville & N. R. Co., 56 Tenn. 823, 1872 Tenn. LEXIS 210 (1872); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911).

It is not necessary that both the engineer and fireman be upon the lookout ahead, for if either is, the statute is satisfied. But where there is no insistence on the part of the railroad, and there is no proof that it complied with the statute in this respect, erroneous instruction of the trial judge that the railroad should keep on the lookout ahead by the engineer and the fireman is harmless, and does not constitute reversible error. Railroad v. Wyrick, 99 Tenn. 500, 42 S.W. 434, 1897 Tenn. LEXIS 59 (1897).

Where the engineer did not look ahead nor blow the whistle, though, had he looked, he could have seen plaintiff's decedent 150 feet away and could have warned him of his danger, the railroad company is liable. Southern Ry. v. Cooper, 245 F. 857, 1917 U.S. App. LEXIS 1555 (6th Cir. 1917).

Where the engineer was on the side of the locomotive on the outside of the curve, and was unable to see the deceased who could have been seen by the fireman, if he had not been engaged in shoveling coal into the fire box, it was held that the railroad was not negligent under the statute in not providing for a lookout, either by the engineer or fireman, or by a third person charged with that undivided duty. Southern Ry. v. Colton, 138 Tenn. 300, 197 S.W. 901, 1917 Tenn. LEXIS 34 (1917).

Whether a fireman engaged in preparing his “coal boards” so as to be ready to receive coal at the next station, which they were then approaching, is engaged in a necessary duty excusing him from maintaining a lookout, is a question of fact for the jury. Southern R. Co. v. Ashby, 36 F.2d 352, 1929 U.S. App. LEXIS 2171 (6th Cir. Tenn. 1929).

Where an engineer is keeping the required lookout and does everything he could do under the circumstances to avoid the accident, there can be no recovery under the statute. Southern Ry. v. Lewis, 37 F.2d 340, 1930 U.S. App. LEXIS 2556 (6th Cir. 1930); Cincinnati, N. O. & T. P. R. Co. v. Galloway, 59 F.2d 664, 1932 U.S. App. LEXIS 3439 (6th Cir. Tenn. 1932).

99. —Obstructions.

“Obstruction” is not such a term of art as to require the testimony of an expert to explain its meaning as understood by railroad men. What is, or what is not, an obstruction on a railroad track is a simple question of fact. Nashville & C.R.R. v. Carroll, 53 Tenn. 347, 1871 Tenn. LEXIS 370 (Tenn. Oct. 14, 1871), overruled in part, McIntyre v. Balentine, 833 S.W.2d 52, 1992 Tenn. LEXIS 336 (Tenn. 1992). See Southern Ry. v. Sutton, 179 F. 471, 1910 U.S. App. LEXIS 4665 (6th Cir. 1910).

It is established by a long line of decisions that no duty rests upon the agents and servants of the railroad to comply with subdivision (3) until an obstruction appears upon the track in front of the moving train or so near that it will be struck by the train. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

The word “obstruction” as used in this section means that which may obstruct or hinder the free and safe passage of a train or that which may receive an injury or damage if run over by the train. Majestic v. Louisville & N. R. Co., 147 F.2d 621, 1945 U.S. App. LEXIS 2180 (6th Cir. Tenn. 1945).

100. — —“Appearance on Road” Defined.

If the obstruction does not appear upon the “road,” but merely appears on some other part of the right of way, the statute does not apply, but the principles of the common law are applicable. Louisville N. & G. S. R.R. Co. v. Reidmond, 79 Tenn. 205, 1883 Tenn. LEXIS 44 (1883); Rogers v. Cincinnati, N.O. & T.P. Ry., 136 F. 573, 1905 U.S. App. LEXIS 4493 (6th Cir. 1905).

In order to recover under subdivision (3), it must be proved that decedent appeared on the road in front of the engine, as an obstruction thereto, and that the engineer failed to sound the alarm, put on the brakes, and employ every means possible to prevent the accident. Virginia & S.W. Ry. v. Hawk, 160 F. 348, 1908 U.S. App. LEXIS 4192 (6th Cir. 1908).

Where plaintiff's decedent was seen on the track by defendant's brakeman the full distance ahead for which physical obstacles permitted a view of the track and the statutory precautions could have been taken to prevent the accident before they were actually put in operation, judgment for plaintiff may be upheld. Cincinnati, N.O. & T.P. Ry. v. McIntyre, 215 F. 91, 1914 U.S. App. LEXIS 1229 (6th Cir. 1914).

Appearance on the road, within the meaning of subdivision (3), means appearance on the track in front of the moving train, or so near that the object will be struck by the moving train. Gaines v. Tennessee Cent. Ry., 175 Tenn. 389, 135 S.W.2d 441, 1939 Tenn. LEXIS 51 (1939).

Appearance of an obstruction upon the road under this section means appearance on the railroad tracks, or so near thereto as to be within striking distance of the train and not necessarily the public approach or whole road in the orbit of vision of the lookout. Louisville & N. R. Co. v. Farmer, 220 F.2d 90, 1955 U.S. App. LEXIS 3307 (6th Cir. Tenn. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955), cert. denied, Farmer v. Louisville & N. R. Co., 361 U.S. 840, 80 S. Ct. 83, 4 L. Ed. 2d 79, 1959 U.S. LEXIS 531 (1959).

101. — —Object Near Tracks.

The rule, if a person seen on the track gets off and out of reach of the train, while under observation, the railroad company is not bound to exercise the statutory precautions specified, although such person may afterward get back on the track and be injured, is applicable only where such person has gone far enough away from the track and under such circumstances as reasonably to indicate his safety. Louisville & N.R.R. v. Truett, 111 F. 876, 1901 U.S. App. LEXIS 4441 (6th Cir. 1901).

An object does not appear on the road within the meaning of subdivision (3) until the object is near enough to the road to be struck by a passing train. Rogers v. Cincinnati, N.O. & T.P. Ry., 136 F. 573, 1905 U.S. App. LEXIS 4493 (6th Cir. 1905).

A person does not pass out of striking distance of a railroad train, while he 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. Southern Ry. v. Sutton, 179 F. 471, 1910 U.S. App. LEXIS 4665 (6th Cir. 1910).

Where boy ran into side of unseen moving train at night due to failure of train to sound warning the railroad was liable even though boy did not appear as an obstruction on the tracks. Southern R. Co. v. Koger, 219 F. 702, 1915 U.S. App. LEXIS 1660 (6th Cir. Tenn. 1915), cert. denied, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915), cert. denied, Southern R. Co. v. Koger, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915).

Where plaintiff's decedent was walking toward an approaching train upon a generally used and commonly considered safe path and part of the train passed him before he went under it and was killed, the railroad company is not liable because of failure to sound the whistle on the engine, apply the brakes and stop the train, since plaintiff's decedent was not an obstruction ahead of the train within the meaning of the statute. Southern R. Co. v. Matthews, 29 F.2d 52, 1928 U.S. App. LEXIS 2610 (6th Cir. Tenn. 1928), cert. denied, 279 U.S. 844, 49 S. Ct. 264, 73 L. Ed. 989, 1929 U.S. LEXIS 178 (1929), cert. denied, Matthews v. Southern R. Co., 279 U.S. 844, 49 S. Ct. 264, 73 L. Ed. 989, 1929 U.S. LEXIS 178 (1929).

A truck which an engineer sees approaching a railway crossing is not an obstruction until it is apparent that the truck is not going to stop. Cincinnati, N. O. & T. P. R. Co. v. Galloway, 59 F.2d 664, 1932 U.S. App. LEXIS 3439 (6th Cir. Tenn. 1932).

Where engine and motor vehicle arrived at crossing at approximately the same time the railroad must comply with this section in giving warning and keeping a lookout, since the motor vehicle was an obstruction on the track or within striking distance as set out in these sections. Illinois C.R.R. v. Perkins, 223 Miss. 891, 79 So. 2d 459, 1955 Miss. LEXIS 453 (1955).

102. — —Circumstantial Evidence Cases.

Where there is no direct evidence of the manner of death, it is reversible error to refuse to give the defendant's request as follows: “If you believe, from the proof, that the deceased never appeared in front of the train, but staggered against some part of the train back of the front of the engine, the plaintiff could not recover.” Nashville, C. & T.P.R.R. v. Egerton, 98 Tenn. 541, 41 S.W. 1035, 1896 Tenn. LEXIS 246 (1896). See Nashville, C. & St. L.R.R. v. Seaborn, 85 Tenn. 391, 4 S.W. 661, 1886 Tenn. LEXIS 63 (1887); Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

Where it was proved that plaintiff's intestate left the station in the night, walking upon the railroad track, and in the morning his body was found in pieces a short distance away, the trunk lying between the rails; that during the time six trains had passed, going in opposite directions; that there were indications that the body had been carried forward and back along the track by the passing trains but there was no direct evidence as to how he came to his death, though there was evidence that he was intoxicated when he left the station, and the engineers and firemen of all the trains testified that they had kept a vigilant lookout, that the headlights were burning, and that none of them saw the man on the track, either living or dead, it was a question for the jury whether deceased had “appeared upon the road,” and whether the railroad company had discharged its duty of maintaining a proper lookout, and had observed the other prescribed precautions. Felton v. Newport, 105 F. 332, 1900 U.S. App. LEXIS 3833 (6th Cir. 1900).

Evidence that the body of deceased was found on the railroad track was not sufficient to establish a presumption that deceased appeared alive in front of a moving train where nothing else appeared to support such contention. Meador v. Nashville, C. & St. L. Ry., 177 Tenn. 273, 148 S.W.2d 371, 1940 Tenn. LEXIS 35 (1941).

Evidence to the effect that deceased started home on a rainy night by a route which either led over a railroad bridge or through a swollen creek beneath the bridge, that the shortest and most logical route led over the bridge, that his mangled body was found 300 feet from the bridge and some six or eight feet from the track, that blood and other remains appeared on the track, that his shoes bore no mud as they would have if he had taken the other route and that a train passed over the track a short time after he started home was sufficient to raise a presumption that defendant appeared on the track as an obstruction. Law v. Louisville & N.R.R., 179 Tenn. 687, 170 S.W.2d 360, 1942 Tenn. LEXIS 69 (1943).

103. — —Sudden Appearance on Track.

Where it appears that the object had not appeared on the track until the very instant the engine struck it, this statute has no application, and it is error to give it in charge. Nashville, C. & St. L.R.R. v. Seaborn, 85 Tenn. 391, 4 S.W. 661, 1886 Tenn. LEXIS 63 (1887); Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907).

Where plaintiff came from behind an obstruction and appeared on track simultaneously with the engine at the point of collision the statute does not apply. Jones v. East Tenn., Va. & Ga. R.R., 128 U.S. 443, 9 S. Ct. 118, 32 L. Ed. 478, 1888 U.S. LEXIS 2235 (1888).

The several precautions need not necessarily be complied with in the order in which they are enumerated in the statute. If, by reason of the suddenness of the appearance of the obstruction upon the track, and the proximity and speed of the train, it is impossible to observe each and all of the precautions, then it is the duty of the engineer, or person in charge, to perform such of the requirements as, under all the circumstances, are best calculated and most effectual to prevent the accident. Memphis & C.R.R. v. Scott, 87 Tenn. 494, 11 S.W. 317 (1889); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911); Louisville & N. R. Co. v. Ross, 2 Tenn. App. 384, 1926 Tenn. App. LEXIS 35 (1926).

Subdivision (3) applies only when the person or obstruction appears on the track in front of the engine or within lateral striking distance before the collision occurs, and it does not apply where the person first comes within striking distance at a point which the head of the engine has already passed, or at the very instant of the engine's arrival. Curtis v. Louisville & N.R.R., 232 F. 109, 1916 U.S. App. LEXIS 1795 (6th Cir. 1916).

Subdivision (3) does not apply if obstruction appears on railroad so suddenly that compliance with requirements of this subsection is impossible. Louisville & N.R.R. v. Tracey, 12 Tenn. App. 167, 1928 Tenn. App. LEXIS 205 (1928); Louisville & N.R.R. v. Tucker, 211 F.2d 325, 1954 U.S. App. LEXIS 2554 (6th Cir. 1954), rehearing denied, 215 F.2d 227, 1954 U.S. App. LEXIS 2824 (6th Cir. Tenn. Aug. 31, 1954).

When an obstruction appears in front of a moving train in such proximity that the statute cannot be observed, it is then a common-law case and not a statutory case. Louisville & N.R.R. v. Tracey, 12 Tenn. App. 167, 1928 Tenn. App. LEXIS 205 (1928).

Where an automobile appeared as an obstruction on the track too late to permit the precautions required by subdivision (3) to be carried out, the duty of the engineman with respect to such automobile was not governed by the statute, but by the common law. Gaines v. Tennessee Cent. Ry., 175 Tenn. 389, 135 S.W.2d 441, 1939 Tenn. LEXIS 51 (1939).

104. — —Common-Law Cases.

Until an obstruction “appears on the road” within the meaning of subdivision (3), the duty of the railroad is governed by the common law and not the statute. Gaines v. Tennessee Cent. Ry., 175 Tenn. 389, 135 S.W.2d 441, 1939 Tenn. LEXIS 51 (1939).

105. — —Burden of Proof.

The burden of proof rested upon the plaintiff suing for the death of her intestate to show that such intestate was on or so near the track as to be an obstruction, before the railroad company was bound to show that it observed the statutory precautions. Virginia & S.W. Ry. v. Hawk, 160 F. 348, 1908 U.S. App. LEXIS 4192 (6th Cir. 1908); Cincinnati, N.O. & T.P.R.R. v. Brock, 132 Tenn. 477, 178 S.W. 1115, 1915 Tenn. LEXIS 37 (1915).

Burden of proof is upon plaintiff to show an obstruction by virtue of being on or near the track before the railroad company is required to show that it complied with statutory requirements. Cincinnati, N.O. & T.P.R.R. v. Brock, 132 Tenn. 477, 178 S.W. 1115, 1915 Tenn. LEXIS 37 (1915).

The burden is on plaintiff to show that the obstruction did appear on the track ahead of the engine. Curtis v. Louisville & N.R.R., 232 F. 109, 1916 U.S. App. LEXIS 1795 (6th Cir. 1916).

In an action against a railroad company for wrongful killing, the burden was upon plaintiff to show that deceased appeared upon the track in front of the train or so near to it as to be an obstruction, and until this was done there was not made out such a prima facie case as would place the burden upon the defendant of showing that it had observed requirements of the statute. Tennessee Cent. R.R. v. Gleaves, 2 Tenn. App. 549, 1926 Tenn. App. LEXIS 55 (1926).

After plaintiff proved that he had become an obstruction on the track, the burden shifted to the railroad to prove that it observed the statutory precautions. Union Traction Co. v. Todd, 16 Tenn. App. 200, 64 S.W.2d 26, 1933 Tenn. App. LEXIS 3 (1933).

In suit for wrongful death of plaintiff's husband based on the alleged violation of subdivision (3) by railroad company, the burden of proof was on plaintiff to prove that deceased appeared upon the track as an obstruction, and until this was done a prima facie case was not made out which would place on the defendant the burden of showing compliance with the statute. Meador v. Nashville, C. & St. L. Ry., 177 Tenn. 273, 148 S.W.2d 371, 1940 Tenn. LEXIS 35 (1941).

If an obstruction appears on the road as defined in this section the burden of proof rests on the railroad to prove the required statutory precautions were duly observed. Louisville & N. R. Co. v. Farmer, 220 F.2d 90, 1955 U.S. App. LEXIS 3307 (6th Cir. Tenn. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955), cert. denied, Farmer v. Louisville & N. R. Co., 361 U.S. 840, 80 S. Ct. 83, 4 L. Ed. 2d 79, 1959 U.S. LEXIS 531 (1959).

Once a plaintiff has established a prima facie case that plaintiff's decedent was an obstruction on the track, or where he could have been observed by the train crew, the burden shifts to the defendant railroad to establish its compliance with the Statutory Precautions Act. Gilreath v. Southern R. Co., 323 F.2d 158, 1963 U.S. App. LEXIS 4124 (6th Cir. Tenn. 1963).

Under Tennessee law, the burden was on the plaintiff to establish a prima facie case that plaintiff's decedent was an obstruction upon the track, or within the sweep of the train, where he could have been observed by the train crew. Gilreath v. Southern R. Co., 323 F.2d 158, 1963 U.S. App. LEXIS 4124 (6th Cir. Tenn. 1963).

106. — —Evidence.

This statute is applicable where the object might have been seen, and should be charged where there is some evidence tending to show that the object might have been seen by the person upon the lookout upon the locomotive. East Tenn. & W.N.C.R.R. v. Winters, 85 Tenn. 240, 1 S.W. 790, 1886 Tenn. LEXIS 37 (1886).

Where engineer testified that he gave warning signals by means of the whistle as he neared crossing and slowed down to ten miles per hour, but lights due to curved track did not pick out deceased who was intoxicated and sitting on track until engine was 80 feet away and that he released and applied brakes, the issue as to whether engineer employed all of the means at his disposal to prevent accident was for the jury. Casteel v. Southern Ry., 187 Tenn. 586, 216 S.W.2d 321, 1948 Tenn. LEXIS 470 (1948).

Where there was evidence to show that plaintiff fell from trestle after seeing approaching train, that visibility was good, and that no warning was sounded and no attempt to stop was made, evidence was sufficient to go to jury. Southern R.R. v. Cradic, 42 Tenn. App. 212, 301 S.W.2d 374, 1956 Tenn. App. LEXIS 124 (1956).

Where train was almost an hour ahead of schedule and did not give the customary crossing whistle and automobile almost cleared track before it was struck by train, and rough crossing may have required decedent to approach crossing slowly, jury was justified in finding that decedent's automobile became an obstruction within striking distance of the train substantially ahead of the engineer. Louisville & N. R. Co. v. Rochelle, 252 F.2d 730, 1958 U.S. App. LEXIS 3759 (6th Cir. Tenn. 1958).

107. — —Instructions.

An instruction that if the appearance of an automobile upon the track was practically simultaneous with the collision, this section is not applicable, was proper even though it would have been more exact to say road rather than track. Louisville & N. R. Co. v. Farmer, 220 F.2d 90, 1955 U.S. App. LEXIS 3307 (6th Cir. Tenn. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955), cert. denied, Farmer v. Louisville & N. R. Co., 361 U.S. 840, 80 S. Ct. 83, 4 L. Ed. 2d 79, 1959 U.S. LEXIS 531 (1959).

108. — —Questions for Jury.

Issue of whether railroad's employees were keeping proper lookout under subdivision (3) was for jury where engineer who had also to watch signals admits he did not see motor vehicle before accident although other witnesses say it was possible to see if looking. Illinois C.R.R. v. Perkins, 223 Miss. 891, 79 So. 2d 459, 1955 Miss. LEXIS 453 (1955).

Where deceased was found, fatally injured, lying between the rails of a railroad track, without anyone claiming to have seen the fatal accident, questions as to whether he had appeared as an obstruction, which, if either, of defendant railroads were operating the train which struck him, and whether such railroad failed to take precautions required by the Statutory Precautions Act were questions for a jury. Gilreath v. Southern R. Co., 323 F.2d 158, 1963 U.S. App. LEXIS 4124 (6th Cir. Tenn. 1963).

109. — —Persons on Track.

Where there was evidence tending to show that the object (a traction engine) appeared on the railroad track too late to comply, it was error for the court to refuse to give in charge the special request of the defendant that, if the traction engine did not appear on the railroad track until the instant the train struck it, the question of the nonobservance of the statutory precautions did not arise, and, if the company was without fault in other respects it was not liable, although there was evidence introduced by the plaintiff tending to show that the traction engine did not suddenly appear upon the track, but was there while the train was some distance away. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907).

Testimony regarding experiments or tests regarding visibility of a person on the track as an obstruction. Louisville & N.R.R. v. Johnson, 7 Tenn. Civ. App. (7 Higgins) 458 (1917).

Evidence by 16-year-old boy that he did not see or hear train approaching from behind him was not so inherently improbable or unbelievable so as to prevent issue of obstruction from going to the jury. Southern Ry. v. Hutson, 170 Tenn. 5, 91 S.W.2d 290, 1935 Tenn. LEXIS 100 (1935).

110. — — —Employees.

When an employee appears on the track, if he is then in such proximity to the train that danger to his person is probable, or if afterwards the train comes so near to him as to render it likely, under all the circumstances, that he may be injured if the train is not stopped, then it is the duty of the engineer and other operatives to use all the means in their power to stop the train and prevent a collision; but they are not required to do this “whenever” or “as soon as” the employee appears on the track, without reference to the distance in advance, or the danger of collision. Railway Co. v. Hicks, 89 Tenn. 301, 17 S.W. 1036, 1890 Tenn. LEXIS 52 (1890); Cincinnati, N.O. & T.P.R.R. v. Holland, 117 Tenn. 257, 96 S.W. 758, 1906 Tenn. LEXIS 47 (1906); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909).

A brakeman who is sent to flag an approaching train and who, after placing his signals and while waiting for the train, sits down near the track and falls asleep, in consequence of which his arm is crushed by the train, is negligent and cannot recover for his injuries, unless the engineer of the approaching train sees his danger in time to avoid the accident. St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909).

It is the common-law duty of a brakeman, commissioned to go forward and flag an expected train, to look and listen continuously so long as he is upon the track. St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909).

111. — — —Children.

Where the evidence shows that the children killed should have been seen 400 to 500 feet ahead of the engine and that they were not in fact seen, and that therefore no attempt was made to stop the engine, or to give the statutory warning, until the children were only 175 feet away, a judgment for plaintiff may be sustained. Cincinnati, N.O. & T.P. Ry. v. Craig, 209 F. 50, 1913 U.S. App. LEXIS 1761 (6th Cir. 1913).

Where a 13-year-old girl approached a railroad track on a public highway slowly, and after passing over the first track she stepped upon the second track and was struck by a locomotive owned by the defendant, and was killed by the impact, the doctrine of last clear chance or discovered peril is not applicable, so as to authorize recovery for wrongful death, in the absence of any material evidence that the engineer negligently failed to realize her mental abstraction and discover her peril, and in the absence of evidence that he should have become conscious of her situation and condition in the exercise of due care. Southern Ry. v. Whaley, 170 Tenn. 668, 98 S.W.2d 1061, 1936 Tenn. LEXIS 48 (1936).

An engineer, who has not given the warning signal, may not assume that a child of tender years, even though he has observed the approaching train, will continue to exercise the discretion and care for self that an adult would do, by remaining in a place of safety. West v. Southern Ry., 20 Tenn. App. 491, 100 S.W.2d 1004, 1936 Tenn. App. LEXIS 41 (Tenn. Ct. App. Oct. 24, 1936).

Evidence was insufficient to show that child appeared alive as an obstruction on tracks of railroad where child was struck at crossing and dragged several hundred feet with parts of her body between the tracks though mother testified that she last saw child on the crossing on her way to make a phone call at 3:00 a.m. Western & A. R. R. v. Land, 187 Tenn. 533, 216 S.W.2d 27, 1948 Tenn. LEXIS 464 (1948).

Evidence was sufficient to show that 12-year-old boy was an obstruction on the track within the meaning of subdivision (3) where it was shown that pathway was immediately along side the crossties of the track and the other side of the pathway was bordered by thick undergrowth and there was evidence that the boy was on such path. Southern Ry. v. Hutchings, 288 F.2d 837, 1961 U.S. App. LEXIS 4857 (6th Cir. 1961).

112. — — —Trespassers.

This statute does not apply where a trespasser, walking along the railroad right of way, but not within the normal sweep of the train, was struck by a piece of scantling which projected about six feet from the edge of a car loaded with lumber, the projection of which was unknown to the train operatives, for the engineer on the lookout ahead, could not be held to anticipate the existence of such a projection as an enlargement of the sweep of the train. Preslar v. Mobile & O.R.R., 135 Tenn. 42, 185 S.W. 67, 1916 Tenn. LEXIS 11 (1916).

The mere fact that a party is a trespasser upon the railroad track and is injured while thereon, or while contributing to the injury by his own negligence, will not prevent him from recovering damages for injuries negligently inflicted by the railroad company, if the injuries might have been averted by the use of ordinary care on the part of the company. Nashville, C. & St. L. Ry. v. Brymer, 22 Tenn. App. 468, 124 S.W.2d 261, 1938 Tenn. App. LEXIS 47 (1938).

113. — — —Inebriates.

Where the plaintiff, probably drunk, went to sleep with his leg upon one of the rails of the track, and lying in such position as to escape observation until the train was within about 70 feet of him, although the engineer was upon the lookout, and as soon as the plaintiff was discovered, every effort made to stop the train, which it was impossible to do, until it had passed over the leg of the plaintiff, and so mangled it as to necessitate amputation, the plaintiff's own recklessness occasioned the injury, and he was not entitled to recover. Travis v. L. & N. R. R. Co., 77 Tenn. 231, 1882 Tenn. LEXIS 42 (1882).

A railroad company is required to observe or comply with precautions even where a person is drunk and asleep on its track, and for its failure to do so, it is liable for the injuries to such person, resulting from being struck by its train, subject to be mitigated on account of such contributory negligence. Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912). See Louisville & N. R. Co. v. Burke, 46 Tenn. 45, 1868 Tenn. LEXIS 68 (1868), overruled, Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Hill v. Louisville & N. R. Co., 56 Tenn. 823, 1872 Tenn. LEXIS 210 (1872); E. T. V. & G. R.R. v. White, 73 Tenn. 540, 1880 Tenn. LEXIS 178 (1880); Felton v. Newport, 105 F. 332, 1900 U.S. App. LEXIS 3833 (6th Cir. 1900); Cincinnati, N.O. & T.P. Ry. v. Davis, 127 F. 933, 1904 U.S. App. LEXIS 3847 (6th Cir. 1904).

Where deceased in a drunken condition was put off train through inability to produce a ticket and was last seen staggering up the tracks, and there was evidence from the presence of spittle between the tracks that deceased had been either sitting on the track or standing on the track when hit, the issue as to whether railroad was negligent in failing to observe obstruction on track was properly left to the jury. Louisville & N.R.R. v. Hall, 5 Tenn. Civ. App. (5 Higgins) 491 (1915).

114. — —Animals on Track.

115. — — —Relation to Fencing Acts.

Failure to make appraisal of stock killed or injured as provided in former § 65-1228 does not necessitate the bringing of an action for damages under this section. Railroad v. Russell, 92 Tenn. 108, 20 S.W. 784, 1892 Tenn. LEXIS 55 (1892).

The railroad would be liable for killing or injuring livestock on track if right of way were unfenced, but not if fenced. Briggs v. Clawson Bros., 8 Tenn. App. 251, — S.W.2d —, 1928 Tenn. App. LEXIS 135 (Tenn. Ct. App. 1928). See also Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618, 1892 Tenn. LEXIS 20 (1892); Railroad v. Russell, 92 Tenn. 108, 20 S.W. 784, 1892 Tenn. LEXIS 55 (1892); Railroad v. Stonecipher, 95 Tenn. 311, 32 S.W. 208, 1895 Tenn. LEXIS 89 (1895); Mobile & O.R.R. v. Tiernan, 102 Tenn. 704, 52 S.W. 179 (1899); Louisville & N.R.R. v. Patton, 104 Tenn. 40, 54 S.W. 984, 1899 Tenn. LEXIS 7 (1899).

116. — — —Frightened Animals.

In an action for damages for killing a horse, it is proper to refuse a requested instruction the import of which was, that if the animal jumped on the track so near the engine that it was impossible to check or stop it before it came in contact with the animal, and that there was not sufficient time to do more than was done, then the company would be excused from the consequences of not sounding the alarm whistle, since, if the law is not observed, no excuses are tolerated. Nashville & C. R. R. Co. v. Thomas, 52 Tenn. 262, 1871 Tenn. LEXIS 260 (1871).

The statute is not applicable where the injury to a person or animal is not the direct result of a moving train, as by collision therewith, as, for instance, where a mule jumps on the track in front of a moving train, and runs on the road for 200 yards, and then on a trestle, from which it leaps and is killed, without collision with the train, which was stopped before reaching the trestle, a railroad company will not be liable in damages, even though all the statutory precautions are not complied with by it. Holder v. Chicago, St. L. & N.O.R.R., 79 Tenn. 176, 1883 Tenn. LEXIS 36 (1883); Railroad v. Sadler, 91 Tenn. 508, 19 S.W. 618, 1892 Tenn. LEXIS 21, 30 Am. St. Rep. 896 (1892); Railroad v. Phillips, 100 Tenn. 130, 42 S.W. 925, 1897 Tenn. LEXIS 96 (1897); Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912). The common law applies where the statute is not applicable.

There can be no recovery for injuries sustained by a horse in crossing over a railroad trestle, in front of a train, where the train had stopped, and the horse had an opportunity to leave the track, but crossed over the trestle instead. Railroad v. Phillips, 100 Tenn. 130, 42 S.W. 925, 1897 Tenn. LEXIS 96 (1897).

This section is inapplicable where a horse, being suddenly frightened, rushed into a moving train, striking the engine near the cab, before those in charge of the engine could, with the greatest possible diligence, observe the statutory precautions. Railroad v. Thompson, 101 Tenn. 197, 47 S.W. 151, 1898 Tenn. LEXIS 51 (1898).

Where those in charge of the train observe frightened animals on the track or near it, it is incumbent upon them to use ordinary care in operating the train, and if they approach negligently and further frighten the animals and cause injury by their running on a trestle, the railroad is liable for the damages. Nashville, C. & St. L. Ry. v. Ford, 139 Tenn. 505, 201 S.W. 755, 1917 Tenn. LEXIS 127 (1917).

In an action for killing a colt on a public road crossing, it was error to refuse the railroad's requested instruction that if the colt came upon the track immediately in front of the backing tender of the engine, and so near thereto that no means could be taken to stop the train and avoid the accident, the engineer being on the lookout in position to see, and the appearance of the colt being so sudden and so near to the tender that he did not see and could not have seen it in time, then the railroad was not liable merely because its engine was running reversed, contrary to the statute. Southern Ry. v. Owen, 142 Tenn. 1, 215 S.W. 270, 1919 Tenn. LEXIS 29 (1919).

117. — — —Animals Included.

Dogs are animals such as this statute contemplates, and are entitled to the protection of the precautions therein prescribed. Fink v. Evans, 95 Tenn. 413, 32 S.W. 307, 1895 Tenn. LEXIS 109 (1895); Citizens' Rapid Transit Co. v. Dew, 100 Tenn. 317, 45 S.W. 790, 1897 Tenn. LEXIS 120, 66 Am. St. Rep. 754, 40 L.R.A. 518 (1897).

A goose is not an “animal or obstruction” within the meaning of this statute, and in the absence of recklessness or common-law negligence, a railroad company is not liable for the killing of geese permitted to run at large, while trespassing on the railroad track. Nashville & K.R.R. v. Davis, 78 S.W. 1050, 1902 Tenn. LEXIS 109 (1902).

Precautions not required to be observed when an unregistered female dog appears on the track. Cincinnati, N.O. & T.P.R.R. v. Ford, 139 Tenn. 291, 202 S.W. 72, 1917 Tenn. LEXIS 105 (1917). Nor where owner is a misdemeanant in allowing the dog to be at large. Southern Ry. v. Oliver, 3 Tenn. Civ. App. (3 Higgins) 408 (1912).

Subdivision (3) does not include a dog or any animal of insufficient size to be an obstruction to the train. Howard & Herrin v. Nashville, C. & St. L. Ry., 153 Tenn. 649, 284 S.W. 894, 1925 Tenn. LEXIS 51, 46 A.L.R. 1530 (1925).

118. —Prevention of Accidents.

Where there is some evidence tending to show that the deceased might have been seen by the engineer, properly on the lookout, in time to have prevented the accident, it is not error for the court to charge the law as to the observance of the statutory precautions for the prevention of accidents. East Tenn. & W.N.C.R.R. v. Winters, 85 Tenn. 240, 1 S.W. 790, 1886 Tenn. LEXIS 37 (1886).

The requirement that “every possible means” shall be “employed to stop the train and prevent an accident” must be read and construed in view of the facts and surroundings of each particular case. The court declined to state all that is embraced in this requirement, because the case did not call for such definition. Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900).

In an action brought under this statute, for personal injuries received without collision with the train at a crossing, an instruction that it was the duty of the railroad company, on seeing the plaintiff's wagon on or near the track, to sound the whistle and employ every possible means to stop the train and prevent an accident, was proper; but an instruction that the plaintiff was entitled to recover where the engineer made no effort to stop the train, even though no collision occurred, was improper. Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

Counsel for plaintiff in suit to recover damages for personal injuries was entitled to call to the attention of the jury that fireman and engineer were guilty of a felony if they failed to obey statutory requirements for prevention of accidents. Nashville, C. & St. L. Ry. v. Mangrum, 15 Tenn. App. 518, 1932 Tenn. App. LEXIS 120 (1932).

Where engineer testified that he gave warning signals by means of the whistle as he neared crossing and slowed down to 10 miles per hour, but lights due to curved track did not pick out deceased who was intoxicated and sitting on track until engine was 80 feet away and that he released and applied brakes, the issue as to whether engineer employed all of the means at his disposal to prevent accident was for the jury. Casteel v. Southern Ry., 187 Tenn. 586, 216 S.W.2d 321, 1948 Tenn. LEXIS 470 (1948).

119. — —Performance of Part of Precautions.

If there is not time to do everything the statute requires, then the engineer must do those things first which are best calculated to prevent the accident. Memphis & C.R.R. v. Scott, 87 Tenn. 494, 11 S.W. 317 (1889); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911); Louisville & N. R. Co. v. Ross, 2 Tenn. App. 384, 1926 Tenn. App. LEXIS 35 (1926); Cincinnati, N. O. & T. P. R. Co. v. Galloway, 59 F.2d 664, 1932 U.S. App. LEXIS 3439 (6th Cir. Tenn. 1932). See also Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

Where motorist had driven onto a crossing and had almost cleared it when his car was struck by railroad engine about the center of its rear right fender, the burden shifted to the railroad company to show that it had observed the statutory precautions set out in subdivision (3) or at least such of them as would have been most effective to avert a collision. Callaway v. Christison, 148 F.2d 303, 1945 U.S. App. LEXIS 2437 (6th Cir. Mar. 26, 1945).

120. — —Alarm Whistle.

In order to show a compliance with the statute, the railroad company must, of necessity, show that it had the whistle, the brakes, and the means to be thus employed. Louisville & N. R. Co. v. Connor, 56 Tenn. 19, 1871 Tenn. LEXIS 423 (1871); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900). See Nashville & C.R.R. v. Smith, 58 Tenn. 455, 1872 Tenn. LEXIS 285 (1872).

The statute does not specify the number or character of the whistles; it only says the “alarm whistle.” The question whether a “call for brakes,” shown by the proof to be either one, two, or three short whistles, according to the imminence of the danger, constitutes the “alarm whistle,” a series of successive whistles to alarm or frighten off stock, is reserved. Dinwiddie v. Louisville & N.R.R., 77 Tenn. 309, 1882 Tenn. LEXIS 55 (1882).

121. — —Ringing Bell.

It is not error for the trial judge to instruct the jury that they may determine whether the ringing of the bell was or would have been one of the means of preventing the accident. Cincinnati, N.O. & T.P.R.R. v. Abbott, 5 Tenn. Civ. App. (5 Higgins) 22 (1914).

122. — —Putting Down of Brakes.

The statute does not specify the number of brakemen that shall be upon the train, and it is not required that there shall be one brakeman to each car. The number of brakemen required is left to the regulations of the railroad companies, provided their regulations are reasonable and in conformity with the general usage and course of business of railroads, and are such as contemplate a compliance with the statute according to its fair import and meaning. Louisville & N. R. Co. v. Connor, 56 Tenn. 19, 1871 Tenn. LEXIS 423 (1871); Dinwiddie v. Louisville & N.R.R., 77 Tenn. 309, 1882 Tenn. LEXIS 55 (1882).

It is incumbent on the railroad company to show that all the brakes were put down. Memphis & C.R.R. v. Smith, 56 Tenn. 860, 1872 Tenn. LEXIS 214 (1872); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900).

Railroad was not guilty of statutory negligence in failing to put brakes down when truck suddenly appeared on tracks, since it had no opportunity to comply with provision. Jones v. Louisville & N.R.R., 192 Tenn. 570, 241 S.W.2d 572, 1951 Tenn. LEXIS 304 (1951).

123. — —Reversal of Engine.

In order to exempt the railroad from liability for failure to reverse the engine when it would endanger the lives and limbs of persons on the train, it must comply with all the other statutory precautions and must employ all means other than the reversal of the engine to stop the train. Memphis & C.R.R. v. Smith, 56 Tenn. 860, 1872 Tenn. LEXIS 214 (1872); Routon v. Louisville & N.R.R., 1 Shan. 528 (1875); East T., V. & G. R.R. Co. v. Selcer, 75 Tenn. 557, 1881 Tenn. LEXIS 152 (1881).

The fact that the reversal of the engine, when in motion, would be injurious or hurtful to its machinery will not excuse the railroad company from complying with the requirement of the law that all possible means shall be employed to stop the train and prevent the accident. East T., V. & G. R.R. Co. v. Selcer, 75 Tenn. 557, 1881 Tenn. LEXIS 152 (1881). See Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911).

124. — —Impossibility of Compliance.

The impossibility to check the train before colliding with the obstruction does not excuse nonobservance of the statutory precautions in other respects, where such observance is possible. Nashville & C. R. R. Co. v. Thomas, 52 Tenn. 262, 1871 Tenn. LEXIS 260 (1871); E. T. V. & G. R.R. Co. v. Scales, 70 Tenn. 688, 1879 Tenn. LEXIS 223 (1879); Memphis & C.R.R. v. Scott, 87 Tenn. 494, 11 S.W. 317 (1889).

The railroad company, to exonerate itself, must show that not only the specified precautions were observed, but, in addition, that every possible means was employed to stop the train and prevent the accident. Memphis & C.R.R. v. Smith, 56 Tenn. 860, 1872 Tenn. LEXIS 214 (1872); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900).

The performance of impossibilities in the observance of the statutory precautions will not be required of railroad companies, as, where the accident is unavoidable, its prevention absolutely impossible, and the appearance of the person, animal, or other obstruction upon the road is so sudden and in such close proximity to the engine as to render it impossible, on account of the speed of the train and for want of time, for the railroad company to observe the statutory precautions, the company will be excused, and will not be liable in damages for its failure to perform the impossible thing or to prevent the unavoidable accident. Louisville & N.R.R. v. Stone, 54 Tenn. 468, 1872 Tenn. LEXIS 74 (1872); Moran v. Nashville & C.R.R., 61 Tenn. 379, 1872 Tenn. LEXIS 384 (1872); Nashville & C.R.R. v. Weaver, 3 Shan. 13 (1878); E. T. V. & G. R.R. Co. v. Scales, 70 Tenn. 688, 1879 Tenn. LEXIS 223 (1879); East T. & V. R.R. Co. v. Swaney, 73 Tenn. 119, 1880 Tenn. LEXIS 95 (1880); Travis v. L. & N. R. R. Co., 77 Tenn. 231, 1882 Tenn. LEXIS 42 (1882); Holder v. Chicago, St. L. & N.O.R.R., 79 Tenn. 176, 1883 Tenn. LEXIS 36 (1883); Memphis & C.R.R. v. Scott, 87 Tenn. 494, 11 S.W. 317 (1889); Byrne v. Kansas City, Ft. S. & M. R. Co., 61 F. 605, 1894 U.S. App. LEXIS 2211, 24 L.R.A. 693 (6th Cir. Tenn. 1894); Mobile & O. R. Co. v. House, 96 Tenn. 552, 35 S.W. 561 (1896); Railroad v. Thompson, 101 Tenn. 197, 47 S.W. 151, 1898 Tenn. LEXIS 51 (1898); Artenberry v. Railroad, 103 Tenn. 266, 52 S.W. 878, 1899 Tenn. LEXIS 103 (1899); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Illinois Cent. R.R. v. Abernathey, 106 Tenn. 722, 64 S.W. 3, 1901 Tenn. LEXIS 129 (1901); Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904); Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907); Louisville & N.R.R. v. Tracey, 12 Tenn. App. 167, 1928 Tenn. App. LEXIS 205 (1928).

A railroad company is not liable under subdivision (3), if, after a person could have been seen by the lookout, compliance with the law was impossible. East T. & V. R.R. Co. v. Swaney, 73 Tenn. 119, 1880 Tenn. LEXIS 95 (1880).

The engine may be operated backwards, with the tender in front, where the engineer is actually on the lookout ahead of his engine; and where the lookout ahead saw plaintiff's vehicle, as soon as it could have been seen, as it approached and entered on the crossing, and the engineer immediately blew the alarm whistle, put down the brakes, and used every possible means to stop the train and prevent the accident, the plaintiff cannot recover. Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904)and reconciling these cases on the factsCincinnati, N.O. & T.P. Ry. v. Davis, 161 F. 334, 1908 U.S. App. LEXIS 4354 (6th Cir. 1908). See also Southern Ry. v. Owen, 142 Tenn. 1, 215 S.W. 270, 1919 Tenn. LEXIS 29 (1919).

The statute does not require impossibilities, and where an obstruction appears upon the track in front of the locomotive or in striking distance thereof, so suddenly that compliance with such precautions is impossible, no liability of the railroad could be predicated on the failure to observe the prescribed precautions. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

125. — —Testimony of Servants of Railroads.

Question asked the lookout ahead, whether with vigilance, from his position on the engine as the train was approaching, the object on the track could have been seen by the lookout ahead, is pertinent and competent, where it appears that such lookout was in the best position for seeing ahead at that particular place; but if it appears that some other position on the locomotive was the better one for the lookout ahead at that particular place, such question is not competent, and the rejection of such question put to the lookout in such wrong position is not reversible error. E. T. V. & G. R.R. v. White, 73 Tenn. 540, 1880 Tenn. LEXIS 178 (1880). See Nashville & C.R.R. v. Nowlin, 69 Tenn. 523, 1878 Tenn. LEXIS 131 (1878).

It is permissible for an engineer after testifying as to what he did to avoid an accident to further testify that he did everything he could do to prevent the accident even though it is an expression of an opinion, but it is not conclusive since it is a question within the exclusive province of the jury. Kennedy v. Southern Ry., 2 Tenn. Civ. App. (2 Higgins) 103 (1911); Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928); Casteel v. Southern Ry., 187 Tenn. 586, 216 S.W.2d 321, 1948 Tenn. LEXIS 470 (1948); but see Fitch v. Louisville & N.R.R., 3 Shan. 676 (1875), where court excluded testimony by engineer that he did all in his power to prevent the killing of stock on the ground that it was an expression of an opinion on a matter within the province of the jury.

Where in an action to recover for injuries sustained in a collision between a train and an automobile the evidence was conflicting as to whether or not proper lookout was maintained on the train and whether or not everything possible was done by the engineer of the train to avert the accident, a motion for a directed verdict by the railroad was properly denied. Callaway v. Christison, 148 F.2d 303, 1945 U.S. App. LEXIS 2437 (6th Cir. Mar. 26, 1945).

126. Backing Without Lights (Subdivision (4)).

Where the railroad has, by running its engine backward at night, without a headlight, disabled itself from complying with that part of the statute requiring an effective lookout ahead, it is liable for injury from collision. Iron M. R. Co. v. Dies, 98 Tenn. 655, 41 S.W. 860 (1897).

A person is not guilty of contributory negligence, where, after waiting for a freight train to pass, he passes behind it in the nighttime, at a public crossing in a city, and is surprised and struck by an engine backing silently and rapidly in the opposite direction to that of the freight train, and along a parallel track only eight feet away, without any headlight or lookout, and without sounding the bell or whistle. Iron M. R. Co. v. Dies, 98 Tenn. 655, 41 S.W. 860 (1897).

A person killed in the nighttime by being struck by railroad cars which were being pushed backward across the street along which he was walking is not chargeable with negligence as a matter of law when it does not appear that he could have seen the light on the approaching cars, or how well the place in which he was walking was lighted, and it appears that a train was passing on another track, which might have prevented him from hearing the car that struck him. St. Louis & S. F. R. Co. v. Rutland, 207 F. 287, 1913 U.S. App. LEXIS 1625 (6th Cir. Tenn. 1913), cert. denied, 231 U.S. 755, 34 S. Ct. 323, 58 L. Ed. 468, 1913 U.S. LEXIS 2545 (1913), cert. denied, Rutland v. St. Louis & S. F. R. Co., 231 U.S. 755, 34 S. Ct. 323, 58 L. Ed. 468, 1913 U.S. LEXIS 2545 (1913).

An action by the surviving widow for herself and minor child of decedent, for the death of the husband alleged to have resulted from negligence of defendant in backing freight cars upon a side track without lights or lookout on the rear of the cars, and without giving warning signal, held not supported by evidence that the accident occurred in defendant's railroad yard during switching operation. Tennessee C. R. Co. v. Dial, 16 Tenn. App. 646, 65 S.W.2d 610, 1933 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1933).

Collateral References.

Automobilist's right to recover for injuries due to collision with streetcar at street intersection as affected by speed of streetcar. 28 A.L.R. 277, 46 A.L.R. 1000.

Duty to run a streetcar or train at a speed that will not prevent its being stopped within the distance covered by its own lights. 29 A.L.R. 1045.

Entrapment as defense to prosecution of street railway company for violation of traffic ordinance. 18 A.L.R. 192, 66 A.L.R. 478, 86 A.L.R. 263.

Instructions on “unavoidable accident,” “mere accident,” or the like, in motor vehicle cases — modern cases. 21 A.L.R.5th 82.

Liability for collision between streetcar and vehicle driven ahead of or toward it, along or close to track. 63 A.L.R. 10, 102 A.L.R. 716.

Overhang of streetcar rounding curve, liability for injury inflicted when vehicle struck by. 62 A.L.R. 307.

Policeman, right of way of vehicle carrying. 65 A.L.R. 140.

Preemptive effect of federal railroad safety act, exclusive of “essentially local safety or security hazard” savings clause. 44 A.L.R. Fed. 2d 261.

NOTES TO DECISIONS

1. Construction.

The 1959 amendment to this section converted causes of actions for violation of the Statutory Precautions Act into mere common-law rights of action. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962).

Under the 1959 amendment, violation of § 65-12-108 is merely negligence per se with the burden of proof placed on the plaintiff. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962); Union R. Co. v. Jinks, 55 Tenn. App. 491, 402 S.W.2d 495, 1965 Tenn. App. LEXIS 263 (Tenn. Ct. App. 1965).

2. Application of Amendment.

Where, in 1959, this section was amended so as to make contributory negligence and lack of proximate cause defenses to an action based on the Statutory Precautions Act, although the trial took place after the amendment such amendment was not applicable, since the accident occurred in 1958. Gilreath v. Southern R. Co., 323 F.2d 158, 1963 U.S. App. LEXIS 4124 (6th Cir. Tenn. 1963).

3. Negligence.

Driver of automobile who had unobstructed view of railroad track was guilty of proximate contributory negligence so as to bar recovery in suit arising out of collision of automobile and train even though engineer may have failed to comply with statutory precautions. Union R. Co. v. Jinks, 55 Tenn. App. 491, 402 S.W.2d 495, 1965 Tenn. App. LEXIS 263 (Tenn. Ct. App. 1965).

Since the 1959 amendment enactment, violations of the Statutory Precautions Act constitute merely negligence per se, and the defense of contributory negligence is available just as in other cases. Union R. Co. v. Jinks, 55 Tenn. App. 491, 402 S.W.2d 495, 1965 Tenn. App. LEXIS 263 (Tenn. Ct. App. 1965).

Contributory negligence in a railroad crossing accident is now a complete bar to any recovery by the plaintiff as it is in other negligence actions even though the plaintiff relied upon the Railroad Precautions Act for establishing negligence upon the part of the railroad. Maxwell v. Western-Atlantic R.R., 295 F. Supp. 740, 1967 U.S. Dist. LEXIS 7053 (E.D. Tenn. 1967), aff'd, Fryar v. Western-Atlantic R. Co., 406 F.2d 1326, 1969 U.S. App. LEXIS 8911 (6th Cir. 1969), aff'd, Fryar v. Western-Atlantic R. Co., 406 F.2d 1326, 1969 U.S. App. LEXIS 8911 (6th Cir. 1969).

Proximate contributory negligence was a bar to both a common-law cause of action based on negligence and to a negligence action under the Statutory Precautions Act. Flinchum v. Clinchfield R. Co., 460 F.2d 252, 1972 U.S. App. LEXIS 9327 (6th Cir. Tenn. 1972), cert. denied, 409 U.S. 1044, 93 S. Ct. 541, 34 L. Ed. 2d 494, 1972 U.S. LEXIS 459 (1972), cert. denied, Flinchum v. Clinchfield R. Co., 409 U.S. 1044, 93 S. Ct. 541, 34 L. Ed. 2d 494, 1972 U.S. LEXIS 459 (1972).

4. Pleading.

Since the 1959 amendment it is no longer necessary to have a separate count alleging violation of § 65-12-108 and this section in addition to the common-law count. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962).

Decisions Prior to 1959 Amendment

Note.  Prior to the 1959 amendment this section made the railroad “responsible for all damages” where it failed to observe the precautions set out in § 65-12-108 or resulting from any accident or collision.

1. Construction.

Provisions of § 65-12-108 and this section were impliedly repealed, insofar as they applied to crossings in Shelby County, by Private Acts 1911, ch. 237, taking from the county court and vesting in the board of county commissioners jurisdiction of roads of every class in Shelby County, and by Private Acts 1913, ch. 32, § 8, conferring on the board of county commissioners of the county full power to regulate railroad crossings and to require railroad companies, at their own expense, to grade and provide safeguards and regulation as to such crossings. Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S.W. 437, 1918 Tenn. LEXIS 59 (1918).

Having established that a person appeared as an obstruction on the track and that a railroad failed to comply with the requirements of § 65-12-108(3), liability is visited upon the railroad by this section, providing the railroad “shall be responsible for all damages to person or property occasioned by, or resulting from, any accident or collision that may occur.” Gilreath v. Southern R. Co., 323 F.2d 158, 1963 U.S. App. LEXIS 4124 (6th Cir. Tenn. 1963).

2. Definitions.

The term “these precautions” in the predecessor statute are all those precautions prescribed in § 65-12-108 and were not limited to precautions of any one subdivision in § 65-12-108. Louisville & N.R.R. v. Gardner, 69 Tenn. 688, 1878 Tenn. LEXIS 159 (1878); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900).

The word “accident” had a broader signification than the word “collision,” yet the accident must be so far in the nature of a collision as to be produced by the train. Beyond possible cases, the two words are only different expressions of the same thing. Holder v. Chicago, St. L. & N.O.R.R., 79 Tenn. 176, 1883 Tenn. LEXIS 36 (1883).

3. Compliance with Precautions.

By the positive language of this statute, liability flows from nonobservance, and nonliability follows observance. Tennessee C. R. Co. v. Page, 153 Tenn. 84, 282 S.W. 376, 1925 Tenn. LEXIS 7 (1926).

The requirements of § 65-12-108 must be observed whether they will be effective to prevent a collision or not. Union Traction Co. v. Todd, 16 Tenn. App. 200, 64 S.W.2d 26, 1933 Tenn. App. LEXIS 3 (1933).

In action against railroad for death of one alleged to have been killed by train as result of defendant's failure to observe statutory precautions and where defendant's inconsistent theories as to cause of death were countered only by inference drawn from presence of vomit on track, verdict for plaintiff depends upon surmise, speculation and conjecture, no witness in the record having seen decedent alive on defendant's track prior to accident and judgment was therefore reversed and case dismissed. Nashville, C. & St. L. Ry. v. Sutton, 21 Tenn. App. 31, 104 S.W.2d 834, 1936 Tenn. App. LEXIS 68 (Tenn. Ct. App. July 25, 1936).

The language of this section is explicit and certain, the railroad must show strict compliance with the statute to absolve itself of negligence and even contributory negligence on the part of a person injured does not excuse a strict compliance. Majestic v. Louisville & N. R. Co., 147 F.2d 621, 1945 U.S. App. LEXIS 2180 (6th Cir. Tenn. 1945).

Failure to observe statutory precautions fixes absolute liability upon the railroad. Nashville, C. & S. L. Ry. v. Smith, 33 Tenn. App. 45, 228 S.W.2d 495, 1949 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1949).

Issue of whether railroad's employees were keeping proper lookout under § 65-12-108(3) was for jury where engineer who had also to watch signals admits he did not see motor vehicle before accident although other witnesses say it was possible to see if looking. Illinois C.R.R. v. Perkins, 223 Miss. 891, 79 So. 2d 459, 1955 Miss. LEXIS 453 (1955).

4. Actions for Damages.

5. —Suit by Assignee.

An action in the name of the assignor for the use of the assignee may be maintained for the damages done to property by a railroad company, under this statute. East Tenn., G. & V.R.R. v. Henderson ex rel. Mathis, 69 Tenn. 1, 1878 Tenn. LEXIS 30 (1878).

6. —Issue of Negligence.

Where a person going in the same direction as a train stepped aside to allow it to pass and then stepped back on the track and was run over by a detached portion of the train that had broken loose from the front part and it is alleged that there were servants of the railroad company on the detached part of the train, who, had they been on the lookout could have and ought to have warned intestate in time to have averted the accident, the question of defendant's negligence should have been submitted to the jury notwithstanding there was no allegation that intestate looked and listened before stepping back on the track. Patton v. Railway Co., 89 Tenn. 370, 15 S.W. 919, 1890 Tenn. LEXIS 59, 12 L.R.A. 184 (1890).

If the railroad has been guilty of violations, contributory negligence by the other party will go only to mitigation of damages. Tennessee C. R. Co. v. Zearing, 2 Tenn. App. 451, — S.W. —, 1925 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1925).

Where engineer testified that he gave warning signals by means of the whistle as he neared crossing and slowed down to ten miles per hour, but lights, due to curved track, did not pick out deceased who was intoxicated and sitting on track until engine was 80 feet away and that he released and applied brakes, the issue as to whether engineer employed all of the means at his disposal to prevent accident was for the jury. Casteel v. Southern Ry., 187 Tenn. 586, 216 S.W.2d 321, 1948 Tenn. LEXIS 470 (1948).

Contributory negligence is not a defense to the absolute liability of the railroad for failure to observe requirements of § 65-12-108, although the jury may apply it in reduction of damages. Illinois C.R.R. v. Perkins, 223 Miss. 891, 79 So. 2d 459, 1955 Miss. LEXIS 453 (1955).

7. —Causal Connection.

Whether there was any causal connection between the failure of the fireman to keep a lookout and the injury which occurred is a question for the jury. Southern R. Co. v. Ashby, 36 F.2d 352, 1929 U.S. App. LEXIS 2171 (6th Cir. Tenn. 1929).

8. —Proximate Cause.

In an action under this section the giving of a charge on proximate cause, though not necessary, was not reversible error. Union Traction Co. v. Todd, 16 Tenn. App. 200, 64 S.W.2d 26, 1933 Tenn. App. LEXIS 3 (1933).

A failure to observe the statute, though not the proximate cause of the injury, renders the company liable, although it may appear that the accident or collision would have occurred had the precautions been observed, and even though the negligence of the plaintiff was the direct and proximate cause. Nashville, C. & St. L. Ry. v. Brymer, 22 Tenn. App. 468, 124 S.W.2d 261, 1938 Tenn. App. LEXIS 47 (1938).

9. —Burden of Proof.

Under Tennessee law, the burden was on the plaintiff to establish a prima facie case that plaintiff's decedent was an obstruction upon the track, or within the sweep of the train, where he could have been observed by the train crew. Gilreath v. Southern R. Co., 323 F.2d 158, 1963 U.S. App. LEXIS 4124 (6th Cir. Tenn. 1963).

Once a plaintiff has established a prima facie case that plaintiff's decedent was an obstruction on the track, or where he could have been observed by the train crew, the burden shifts to the defendant railroad to establish its compliance with the Tennessee Precautions Act. Gilreath v. Southern R. Co., 323 F.2d 158, 1963 U.S. App. LEXIS 4124 (6th Cir. Tenn. 1963).

10. —Question for Jury.

Where deceased was found, fatally injured, lying between the rails of a railroad track, without anyone claiming to have seen the fatal accident, questions as to whether he had appeared as an obstruction, which, if either, of defendant railroads was operating the train which struck him, and whether such railroad failed to take precautions required by the Statutory Precautions Act were questions for a jury. Gilreath v. Southern R. Co., 323 F.2d 158, 1963 U.S. App. LEXIS 4124 (6th Cir. Tenn. 1963).

11. —Directed Verdict.

When the evidence is such that if a verdict were returned for plaintiff it would have to be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Goodlett v. Louisville & N.R.R., 122 U.S. 391, 7 S. Ct. 1254, 30 L. Ed. 1230, 1887 U.S. LEXIS 2119 (1887). Contrary rule applies in the state courts. See Tyrus v. Kansas City, Ft. S. & M.R.R., 114 Tenn. 579, 86 S.W. 1074, 1905 Tenn. LEXIS 28 (1905); Brenizer v. Nashville, C. & S. L. Ry, 156 Tenn. 479, 3 S.W.2d 1053, 1927 Tenn. LEXIS 144 (1928); Schindler v. Southern Coach Lines, 188 Tenn. 169, 217 S.W.2d 775 (1949).

A motion to direct a verdict for the defendant is properly refused, where the evidence tends to show that those in charge of the railroad engine did not use every possible means to stop the train as required by the statute. Cincinnati, N.O. & T.P. Ry. v. Craig, 209 F. 50, 1913 U.S. App. LEXIS 1761 (6th Cir. 1913).

Where in an action to recover for injuries sustained in a collision between a train and an automobile, the evidence was conflicting as to whether or not proper lookout was maintained on the train and whether or not everything possible was done by the engineer of the train to avert the accident, a motion for a directed verdict by the railroad was properly denied. Callaway v. Christison, 148 F.2d 303, 1945 U.S. App. LEXIS 2437 (6th Cir. Mar. 26, 1945).

12. Care Required.

A trolley company is charged with the highest degree of care in the construction, maintenance, and operation of its wires, and the degree of care must be exercised with reference to the supervision of its wires. Res ipsa loquitur may apply. Nashville I. Ry. v. Gregory, 137 Tenn. 422, 193 S.W. 1053, 1916 Tenn. LEXIS 87 (1917).

13. Negligence.

While it is not required as a matter of law that an electric railway shall erect guard wires or shields between its trolley and feed wires and the telephone wires overhead, the question whether the omission to do so constituted negligence may, if the proof warrants, be submitted to the jury. Nashville I. Ry. v. Gregory, 137 Tenn. 422, 193 S.W. 1053, 1916 Tenn. LEXIS 87 (1917).

Negligence on the part of the trolley company may be inferred from the fact that a guy wire or trolley wire dangerously charged with electricity falls on or near a public street. Nashville I. Ry. v. Gregory, 137 Tenn. 422, 193 S.W. 1053, 1916 Tenn. LEXIS 87 (1917).

Collateral References.

Absence, improper location, or insufficiency of signs warning approaching travelers of presence of crossing, responsibility for accident as affected by. 93 A.L.R. 218.

Coaster, injury by collision with streetcar. 20 A.L.R. 1439, 109 A.L.R. 941.

Construction or maintenance workers in street or highway. 5 A.L.R.2d 757.

Contributory negligence as a defense to a cause of action leased upon violation of statute imposing duty on railroad. 10 A.L.R.2d 853.

Contributory negligence of adult struck by train while walking or standing beside railroad track. 63 A.L.R.2d 1226.

Custom as standard of care. 68 A.L.R. 1401.

Customary or statutory signals from train as measure of railroad's duty as to warning at highway crossing. 5 A.L.R. 112.

Doctrine of last clear chance. 92 A.L.R. 47, 119 A.L.R. 1041, 171 A.L.R. 365.

Duty and standard of care, with respect to contributory negligence, of person with physical handicap, such as impaired vision or hearing, approaching railroad crossing. 65 A.L.R.2d 703.

Experimental evidence in action for injury on street railway track. 8 A.L.R. 49, 85 A.L.R. 479.

Failure of train employee to discover in time to avert accident that object seen on or near track is human being, is negligence. 70 A.L.R. 1116.

Finding of decedent's body on or near tracks as creating presumption or inference of railroad's negligence, or as affecting burden of proof relating thereto. 40 A.L.R.2d 881.

Forward light on car or train preceding engine, or on engine running backward, duty as to. 15 A.L.R. 1527.

Infrequent use of crossing by railroad company as affecting its duty or liability to travel at crossing. 52 A.L.R. 751.

Injuries from negligence in operation to persons on or near tracks for purpose of boarding streetcar. 75 A.L.R. 289.

Liability, because of improper loading, of railroad to consignee or his employee injured while unloading car. 29 A.L.R.3d 1039.

Liability for striking one who alighted from vehicle in path of approaching streetcar. 46 A.L.R. 1184.

“Owner,” scope and import of term in statutes requiring corporation owning railroad to give crossing signals. 2 A.L.R. 798, 95 A.L.R. 1085.

Probative force of testimony offered to show that crossing signals were not given on approach of train. 162 A.L.R. 9.

Railroad stop statute, applicability of to street railways. 2 A.L.R. 157.

Railroad's liability for crossing collision as affected by fact that train or engine was backing or engine was pushing train. 85 A.L.R. 267.

Railroad's liability for injury or damage from collision of road vehicle with train or car at place other than crossing. 44 A.L.R.2d 680.

Res ipsa loquitur in gas leak cases. 34 A.L.R.5th 1.

Rights of injured guest in vehicle involved in railroad crossing accident as affected by obscured vision from vehicle. 42 A.L.R.2d 350.

Statute relating to crossing signals or other precautions at approach to crossing, applicability of, to car or engine driven on rails by motive power other than steam. 73 A.L.R. 105.

Suction from passing train, liability for death or injury as result of. 149 A.L.R. 907.

Sufficiency of evidence of contributory negligence of driver of car at railroad crossing where his vision is obscured by smoke, dust, atmospheric condition, or unclean windshield. 42 A.L.R.2d 13, 32 A.L.R.4th 933.

Switching operations, statute requiring lookout on locomotive as applicable to. 1 A.L.R.2d 621.

Trolley pole, injury to one other than passenger or employee, by fall of. 5 A.L.R. 1336.

Weather conditions as affecting liability for injury to one struck by streetcar. 20 A.L.R. 1076.

NOTES TO DECISIONS

1. Construction.

The purpose of this statute is not so much to punish an offending engineer as to prevent engineers and trainmen, when using their eyes and ears and all of the safety appliances available, from running their trains or engines together at a crossing. Illinois C. R. Co. v. Hudson, 136 Tenn. 1, 188 S.W. 589, 1916 Tenn. LEXIS 94, 2 A.L.R. 147 (1916).

This statute is remedial as well as penal, and the sense of the words used which will promote the legislative policy should be adopted. Illinois C. R. Co. v. Hudson, 136 Tenn. 1, 188 S.W. 589, 1916 Tenn. LEXIS 94, 2 A.L.R. 147 (1916).

2. Application.

The requirement of this statute has no application to a steam commercial railroad crossing an ordinary horsecar line. Byrne v. Kansas City, Ft. S. & M. R. Co., 61 F. 605, 1894 U.S. App. LEXIS 2211, 24 L.R.A. 693 (6th Cir. Tenn. 1894).

This section does not require a railroad train to stop before crossing tracks of a street railroad. Illinois C. R. Co. v. Hudson, 136 Tenn. 1, 188 S.W. 589, 1916 Tenn. LEXIS 94, 2 A.L.R. 147 (1916); Roper v. Memphis St. Ry., 136 Tenn. 23, 188 S.W. 588, 1916 Tenn. LEXIS 95 (1916); Memphis St. Ry. v. Felts, 6 Tenn. Civ. App. (6 Higgins) 303 (1916).

3. Failure to Stop.

It is not per se contributory negligence to halt a train on a railroad crossing, in accordance with long mutual acquiescence, at a point where two railroads cross each other, where a collision thereupon follows through failure of an approaching train to stop, as required by statute, before crossing, by reason of defective brakes, and such halting on the crossing will not prevent the company so halting from recovering damages for injury to one of its cars, caused by the approaching and colliding train. Louisville & N.R.R. v. East Tenn., V. & G. Ry., 60 F. 993, 1894 U.S. App. LEXIS 2149 (6th Cir. 1894).

A street railway company cannot escape liability for injuries to its passenger resulting from a collision with a railroad train on a crossing, where the street car conductor was lacking in ordinary care in not making sure of the nonapproach of a railroad train before attempting to cross, upon the ground that those in charge of the railroad train were negligent in running over the street railway crossing. Memphis S. R. Co. v. Cavell, 135 Tenn. 462, 187 S.W. 179, 1916 Tenn. LEXIS 39, 1918C Am. Ann. Cas. 42 (1916).

4. Jury Question.

In suit against railroad company and streetcar company arising out of death of passenger of streetcar in collision between streetcar and freight train the issue of the negligence of the railroad in running across crossing when vision was obscured by smoke from train passing in opposite direction was for the jury. Roper v. Memphis St. Ry., 136 Tenn. 23, 188 S.W. 588, 1916 Tenn. LEXIS 95 (1916).

Collateral References.

Statute relating to construction or maintenance of crossing in case of intersecting railroads. 40 A.L.R. 712.

Validity and construction of Railroad Stop Statute. 2 A.L.R. 156.

NOTES TO DECISIONS

1. Interference with Service.

Telephone company whose service to customers was interfered with by use of single trolley system used by street railway company was not entitled to enjoin street railway company from using single trolley system where evidence showed that telephone company could prevent interference by use of a remedy which was less expensive than installation of a double trolley system by the street railway company. Cumberland Tel. & Tel. Co. v. United Elec. Ry., 42 F. 273, 1890 U.S. App. LEXIS 2153, 12 L.R.A. 544 (M.D. Tenn. 1890).

2. Damages.

Telephone company was entitled to recover damages from electric railway company for damage to plant of telephone as result of overflow of electric current used by electric railway company but was not entitled to recover damages for loss due to induction as result of wires of the two companies being parallel to each other, since both companies had equal rights in use of street. Cumberland Tel. & Tel. Co. v. United E. R. Co., 93 Tenn. 492, 29 S.W. 104, 1893 Tenn. LEXIS 77, 27 L.R.A. 236 (1894).

Collateral References.

Public service commission's power with respect to motive power. 5 A.L.R. 65, 39 A.L.R. 1517.

NOTES TO DECISIONS

1. Construction.

A decision that a railway company is, in view of its charter and its work, a commercial and not a terminal railway, is conclusive as to rights based thereon, whether under the rule of res judicata or stare decisis, which rights will be protected as against a subsequent demand involving the same question. State v. Union R. Co., 129 Tenn. 705, 168 S.W. 575, 1915D Am. Ann. Cas. 1240, 1914 Tenn. LEXIS 161 (1914).

The general assembly in passing a revenue act imposing a privilege tax upon terminal companies had in mind such companies as were expressly authorized by this chapter. Memphis Union Station Co. v. Stratton, 182 Tenn. 323, 186 S.W.2d 621, 1945 Tenn. LEXIS 225 (1945).

2. Eminent Domain.

Railroad terminal corporations are charged with public uses, and may be authorized, as done in this statute, to condemn such private property as is absolutely necessary to enable them to accomplish the purposes of their organization. Ryan v. Louisville & N. Terminal Co., 102 Tenn. 111, 50 S.W. 744, 1898 Tenn. LEXIS 12 (1899); Memphis S. L. R. Co. v. Forest Hill Cemetery Co., 116 Tenn. 400, 94 S.W. 69, 1906 Tenn. LEXIS 4 (1906); Great Falls Power Co. v. Webb, 123 Tenn. 584, 133 S.W. 1105, 1910 Tenn. LEXIS 26 (1911).

3. Use of Property.

A railroad terminal corporation, authorized by its charter to acquire and hold land on which to construct and maintain a roundhouse, acts in a private capacity in selecting a place for the roundhouse, and is responsible for the injurious consequence which may result from its improper use by it. Louisville & N. Term. Co. v. Jacobs, 109 Tenn. 727, 72 S.W. 954, 1902 Tenn. LEXIS 105, 61 L.R.A. 188 (1902); Louisville & N. Terminal Co. v. Lellyett, 114 Tenn. 368, 85 S.W. 881, 1904 Tenn. LEXIS 93, 1 L.R.A. (n.s.) 49 (1904); Gossett v. Southern R. Co., 115 Tenn. 376, 89 S.W. 737, 1905 Tenn. LEXIS 74, 112 Am. St. Rep. 846, 112 Am. St. Rep. 846, 1 L.R.A. (n.s.) 97 (1905).

65-15-101. Purpose — Participation in the unified carrier registration system.

1. It is declared that the legislation contained in this part is enacted for the sole purpose of promoting and conserving the interest and convenience of the public by conferring upon the department of revenue and the department of safety the power and authority, and making it the duty of the department of revenue and the department of safety to supervise and regulate the transportation of persons and property by motor vehicle over or upon the public highways of this state, and to supervise and regulate certain businesses closely allied with such motor transportation, so as to:
   1. Regulate, foster, promote and preserve proper and economically sound transportation and authorize and permit proper coordination of all transportation facilities;
   2. Relieve existing and future undue burdens upon the highways arising by reason of their use by motor vehicles;
   3. Protect the welfare and safety of the traveling and shipping public in their use of the highways, and in their contact with the agencies of motor transportation and allied occupations; and
   4. Protect the property of the state and its highways from unreasonable, improper or excessive use.
2. It is the intent of the general assembly that this state participate in the unified carrier registration system beginning with the date that it is established by the secretary of the United States department of transportation, in accordance with 49 U.S.C. § 13908. Pursuant to this intent, the commissioner of revenue is authorized to participate in the unified carrier registration plan and agreement established in accordance with 49 U.S.C. § 14504a, and to file on behalf of this state the plan required by 49 U.S.C. § 14504a(e).
3. Notwithstanding any other law to the contrary, on and after the date on which the secretary of the United States department of transportation establishes the unified carrier registration system in accordance with 49 U.S.C. § 13908, no foreign or domestic motor carrier, motor private carrier, leasing company, broker or freight forwarder, as defined in title 49 of the United States Code, shall operate any motor vehicles on the highways of this state without first registering with a base state under the unified carrier registration system and paying all fees required under the federal Unified Carrier Registration Act of 2005, compiled generally throughout title 49 of the United States Code.
4. Notwithstanding any other law to the contrary, on and after the date on which the secretary of the United States department of transportation establishes the unified carrier registration system in accordance with 49 U.S.C. § 13908, the commissioner of revenue shall follow rules governing the unified carrier registration agreement issued under the unified carrier registration plan by its board of directors. The commissioner shall follow rules and collect fee assessments set by the federal secretary of transportation from foreign and domestic motor carriers, motor private carriers, leasing companies, brokers, and freight forwarders, and do all things necessary to enable this state to participate in the federal unified carrier registration agreement pursuant to the federal Unified Carrier Registration Act of 2005.

Acts 1933, ch. 119, § 21; C. Supp. 1950, § 5501.23 (Williams, § 5501.21); impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-1501; Acts 1995, ch. 305, § 30; 2007, ch. 484, § 97.

Compiler's Notes. Acts 1995, ch. 305, § 11 provided that in order to carry out its functions, duties and responsibilities maintained under the provisions of Acts 1995, ch. 305, the public service commission shall retain and have the authority to exercise any and all of its powers and duties existing under title 65 prior to enactment of Acts 1995, ch. 305, including, but not limited to, the power to subpoena, the power to take evidence, and the power to examine. Upon the termination of the public service commission, the Tennessee regulatory authority is expressly granted the same powers and duties as set forth above for the public service commission in order to carry out its responsibilities established by the provisions of Acts 1995, ch. 305.

Acts 1995, ch. 305, § 46 provided:

“(a)  Notwithstanding any provision of law to the contrary, upon the effective date of this section [May 26, 1995] all enforcement officers of the public service commission charged with the responsibilities of policing and enforcing the provisions of Tennessee Code Annotated, Title 65, Chapter 15, and any other employees of the public service commission necessary to assist in such policing and enforcing, shall be transferred to the department of safety, created by Tennessee Code Annotated, Section 4-3-101.

“(b)  All reports, documents, surveys, books, records, papers or other writings in the possession of the public service commission with respect to administering the enforcement of Title 65, assigned to the department of safety by this act, shall be transferred to and remain in the custody of the department of safety.

“(c)  All leases, contracts and all contract rights, and responsibilities in existence with the public service commission with respect to the duties transferred by this section shall be preserved and transferred to the department of safety.

“(d)  All assets, liabilities and obligations of the public service commission with respect to the duties transferred by this section shall become the assets, liabilities and obligations of the department of safety.

“(e)  Any revenues from rates, fares, charges, fines, and other moneys received pursuant to Tennessee Code Annotated, Title 65, assigned to the department of safety by this act, shall be allocated to the department of safety as approved by the transition team pursuant to Section 48 to implement the provisions of this act.

“(f)  The commissioner of safety shall promulgate rules and regulations pursuant to Title 4, Chapter 5, to effectuate the purposes of this act.”

Cross-References. Apportionment of capital for purposes of franchise tax, § 67-4-2111.

Apportionment of earnings for excise tax purposes, § 67-4-2011.

Assessment of property for tax purposes, title 67, ch. 5, part 13.

Citizen transportation areas designated, § 65-15-115.

Enforcement by highway patrol, § 4-7-105.

Interstate commerce and government business excepted, § 65-15-105.

Liability insurance required, § 65-15-110.

Municipal powers to acquire and subsidize transportation systems, §§ 7-56-101 — 7-56-108.

Passenger transportation services, title 7, ch. 51, part 10.

Procedure for obtaining certificate or permit, § 65-15-109.

Transportation of intoxicating liquors, § 39-17-704.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 22; 5 Tenn. Juris., Carriers, §§ 2, 58.

Law Reviews.

Administrative Law — 1961 Tennessee Survey (Val Sanford), 14 Vand. L. Rev. 1115 (1961).

Social Performance of Public Utilities — Effects of Monopoly and of Monopoly and Competition, 17 Tenn. L. Rev. 308 (1942).

65-15-102. Part definitions.

As used in this part, unless the context otherwise requires:

1. “Airport limousine” means every vehicle designed and/or constructed to accommodate and transport passengers, not more than twelve (12) in number, exclusive of the driver, having an operating agreement with an airport providing for a fixed passenger fare and a fixed schedule, the principal operations of which airport limousine is confined to areas between the airport and fixed points in municipalities, counties and the suburbs of the same within a forty (40) mile radius of such airport;
2. “Commissioner” means the commissioner of revenue unless otherwise indicated;
3. “Commuter van” means a motor vehicle, except taxicabs or airport limousines, used primarily for hauling not more than fifteen (15) passengers to and from their regular places of employment;
4. “Contract hauler” means any person, firm or corporation engaged in the transportation for compensation or hire of persons and/or property for a particular person or corporation to or from a particular place or places under special or individual agreement or agreements, and not operating as a common carrier and not operating exclusively within the corporate limits of an incorporated city or town, or exclusively within the corporate limits of such city or town and the suburban territory adjacent thereto, except “contract hauler” does not exclude those engaged in the transportation of mobile homes for hire or compensation within an incorporated city or town;
5. “Department” means the department of revenue unless otherwise indicated;
6. “Farm vehicle” means a motor vehicle that is:
   1. Controlled and operated by a farmer as a private motor carrier of property;
   2. Being used to transport either:
      1. Agricultural products, or
      2. Farm machinery, farm supplies, or both, to or from a farm;
   3. Not being used in the operation of a for-hire motor carrier;
   4. Not carrying hazardous materials of a type or quantity that requires the commercial motor vehicle to be placarded in accordance with 49 CFR 177.823; and
   5. Used within one hundred fifty (150) miles of the farmer's farm;
7. “For-hire motor carrier” means a person engaged in the transportation of goods or passengers for compensation;
8. “Household goods” means personal belongings transported from one residence to another by motor carrier;
9. “Limousine” means any motor vehicle except a taxicab or sedan designed or constructed to accommodate and transport passengers for hire, with an extended wheel base and expanded seating capacity designed for the transportation of persons. The vehicle shall have additional rear seating capacity, area, and comforts; and shall be designed to transport not more than fourteen (14) persons, exclusive of the chauffeur/driver, and the principal operation of such vehicle is confined to the area within the corporate limits of cities and suburban territory adjacent thereto;
10. “Mobile home” means any factory assembled structure equipped with the necessary service connections and made so as to be readily movable as a unit on its “own running gear and designed to be used as a dwelling unit” without a permanent foundation which can consist of one (1) or more components that can be retracted for towing purposes and subsequently expanded for additional capacity; or of two (2) or more units separately towable but designed to be joined into one (1) integral unit;
11. “Motor carrier” means any person, firm, partnership, association, joint stock company, corporation, lessee, trustee, or receiver appointed by any court whatsoever, operating any motor vehicle with or without semitrailers attached, upon any public highway for the transportation of persons or property, or both, or for providing or furnishing such transportation service, for hire as a common carrier;
12. “Motor freight broker” means any person, firm, partnership, association or corporation engaged in contracting for the transportation of property through the agency of any motor carrier, contract hauler, or other carrier by motor vehicle, where the person so contracting with the shipper or consignor, for such transportation, is not the owner or operator of the agency of motor vehicle transportation used in the actual transportation, but who arranges for such actual transportation by others, pursuant to regular or special contract had with such actual transporting agent;
13. 1. “Motor transportation agent” means any person, firm, partnership, association or corporation engaged, as principal or agent, in the selling, offering for sale, negotiation for, soliciting by advertisement or otherwise, arranging as an intermediary or otherwise, or that holds such person or firm out as one who sells, provides, furnishes or arranges for, transportation for any person or persons over the highways of this state upon a share-expense plan or for fixed compensation, either in the private motor vehicles of persons not motor carriers or contract haulers not holding certificates of convenience and necessity, interstate permit, or contract hauler's permit permitting the transportation of passengers over such highways between the points for which such transportation is sold or provided;
    2. “Motor transportation agent” does not apply to the transportation of children to and from school;
14. “Motor vehicle” means any automobile, automobile truck, motor bus, truck bus or any other self-propelled vehicle not operated or driven upon fixed rails or tracks;
15. “Private carrier” means a person who provides transportation of property or passengers by a commercial motor vehicle and who is not a for-hire motor carrier;
16. “Public highway” means every public street, alley, road, highway, or thoroughfare of every kind in this state used by the public, whether actually dedicated to the public and accepted by the proper authorities or otherwise;
17. “Sedan” means any motor vehicle except a limousine or taxicab designed or constructed to accommodate and transport passengers for hire that does not have an extended wheel base or an expanded seating capacity designed for the transportation of persons. The vehicle has no additional rear seating capacity, area or comforts; is designed to transport not more than five (5) passengers, exclusive of the chauffeur/driver, the principal operation of which is confined to the area within the corporate limits of cities and suburban territory adjacent thereto, and is not operated on a fixed route or schedule;
18. “Shuttle” means any motor vehicle designed or constructed to accommodate and transport not more than fifteen (15) passengers for hire, exclusive of the driver, the principal operation of which is confined to the area within the corporate limits of cities and suburban territory adjacent thereto, and is operated on a fixed route or schedule; and
19. “Taxicab” means any motor vehicle except a limousine or sedan designed or constructed to accommodate and transport not more than nine (9) passengers for hire, exclusive of the driver, the principal operation of which is confined to the area within the corporate limits of cities and suburban territory adjacent thereto, and is not operated on a fixed route or schedule.

Acts 1933, ch. 119, § 1; C. Supp. 1950, § 5501.1; impl. am. Acts 1955, ch. 69, § 1; Acts 1972, ch. 683, §§ 1, 2; T.C.A. (orig. ed.), § 65-1502; Acts 1982, ch. 622, § 1; 1995, ch. 305, § 30; 1999, ch. 97, § 1; 2007, ch. 484, § 98.

Cross-References. Buses, maximum gross weight and length, §§ 55-7-204, 55-7-205.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 58.

Law Reviews.

Administrative Law — 1959 Tennessee Survey (Harold Seligman), 12 Vand. L. Rev. 1057 (1959).

65-15-103. Exempt vehicles — Applicability.

1. The provisions of this part, except those providing for safety inspection and safety rules and regulations for motor vehicles provided for in § 65-15-111, do not apply to any motor vehicles, while used exclusively:
   1. Airport limousines — for carrying persons and/or property between airport terminals and hotels, motels, and other designated points in any municipality, county or the suburb of the same served by such airport;
   2. Ambulances and hearses — in funerals or as ambulances;
   3. Charter vehicles — to any motor vehicle making casual trips on call or under contract, solicited by the party served, for the carrying of passengers; provided, that on such casual trips no operator shall be allowed to pick up any passengers along the route, nor be permitted on the return trip to carry any passengers other than those included in the original or outbound trip;
   4. Commuter vans — to any motor vehicle, except taxicabs or airport limousines, used primarily for hauling fifteen (15) or fewer passengers to and from their regular places of employment, or to the organizers, sponsors or promoters of such vehicles under former § 65-15-115 [repealed];
   5. Intracity transfer service — in-city transfer service by way of transporting property for-hire between points in any one (1) town, city or suburbs thereof, not over or along any definite, fixed, announced, or advertised routes between any points in such one (1) city, town or suburbs thereof; provided, that this exemption does not apply to motor vehicles transporting petroleum products and other hazardous materials, in bulk, in tank trucks or trailers, for-hire, other than those owned or operated by any person, firm or corporation engaged on May 17, 1971, in providing such transport services, unless they are exempt under subdivision (a)(7). No funds received by the department under this section may be used for purposes of funding any retirement benefit for any person, to secure actuarial soundness, nor to improve any retirement plan or benefit; and provided further, that this exemption shall not apply to contract haulers engaged in the transportation of mobile homes; provided, that the contract haulers performing these services as prescribed by this chapter be given thirty (30) days to apply to the department for the authority to continue operation;
   6. Limousines — in the limousine service;
   7. Milk and other perishable farm products and livestock vehicles — for transporting or delivering milk or milk products from the producer thereof to the purchaser from the producer, or to any motor vehicle used casually, by the owner, to convey perishable farm products or livestock to market;
   8. Newspaper delivery vehicles — to any motor vehicle used primarily in the transportation of newspapers, or to any motor vehicle used casually, by the owner, to deliver newspapers while going to or from work, or to any commercial motor vehicle whose commercial use is not now subject to regulation by the department and whose use to deliver newspapers is incidental to its primary use;
   9. Passenger hauling demonstration projects — to any motor vehicle operated pursuant to department approved demonstration projects conducted by state, local municipalities, counties, or metropolitan governments when such demonstration projects are of limited duration and will meet transportation needs in the hauling of passengers; provided, that the department of safety may inspect such vehicles for purposes of safety, and such vehicles shall be subject to § 65-15-111; provided, that the department of safety may establish a minimum level of insurance coverage to be required of all vehicles operating pursuant to this subdivision (a)(9). Vehicles operating pursuant to this subdivision (a)(9) are subject to the inspection, control, and supervision fee as provided in § 65-15-112. This subdivision (a)(9) does not apply in any county having a metropolitan form of government;
   10. Railroad limousines and dray vehicles — for carrying persons and/or property between railroad depots and any points in any city, town or suburb thereof, in or adjacent to which such depot is located;
   11. School and church vehicles — for transporting persons to or from school, Sunday school, church or religious services of any kind, upon special prearranged trips or excursions under the auspices of any religious or charitable organization;
   12. Seasonal transportation of fertilizer for farm or dairy purposes — to any motor vehicle used on a seasonal basis to transport fertilizer to local dealers, farms, gins, or dairies for farm or dairy purposes; provided, that the department may inspect such vehicles for purposes of safety, and such vehicles shall be subject to § 65-15-111;
   13. Sedans — in the sedan service;
   14. Shuttles — in the shuttle service;
   15. Taxicabs — in taxicab service;
   16. Transportation of hot mix asphalt — to any motor vehicle while used in the transportation of hot mix asphalt when the owner, lessee or bailee of the vehicle is legally and regularly engaged in the business of selling or distributing such hot mix asphalt transported on such vehicle; provided, that the department of safety may inspect such motor vehicles for purpose of safety and such vehicles shall be subject to § 65-15-111; and provided further, that the department of safety is empowered to enforce this subdivision (a)(16) with respect to safety as if such vehicle were a common carrier;
   17. Vehicles hauling ore, sand, gravel and other unprocessed products of the soil — to any motor vehicles used in the transportation of coal produced from mines located within this state, or products of the soil in unprocessed state, including, but not limited to, sand, gravel, chert or phosphate muck;
   18. Vehicles hauling recovered materials — to any motor vehicle while used in the transportation of recovered materials from the point of generation to a processing facility or to the end-user of these materials or from the processing facility to the end-user of these materials; provided, that such vehicles shall be subject to the provisions of § 65-15-111 pertaining to safety regulation for motor vehicles. “Recovered materials” means those materials which have been diverted or removed from the solid waste stream for sale, use, reuse or recycling. “Recovered materials” does not include any materials being transported to a landfill; or
   19. Vehicles used in selling or distribution of petroleum products — to any motor vehicle while used in the transportation of petroleum products when the owner, lessee or bailee of the vehicle is legally and regularly engaged in the business of selling or distributing such petroleum products transported on such vehicle; provided, that the department of safety may inspect such motor vehicles for purposes of safety and such vehicles shall be subject to § 65-15-111; and provided further, that the rate charged by any person hauling petroleum products as excluded by this subdivision (a)(19) shall be no less than the rates set by the department for hauling petroleum products by common carriers; and provided further, that the department of safety is empowered to enforce the provisions of this subdivision (a)(19) with respect to safety and rates as if such vehicle was a common carrier including its powers under former § 65-15-121 [repealed].
2. In addition to the provisions of subsection (a), the provisions of this part, except those providing for safety inspection and safety rules and regulations for motor vehicles transporting hazardous materials, do not apply to contract haulers or motor vehicles of contract haulers, while used exclusively for transporting liquid asphalt or any product containing liquid asphalt as one (1) of its ingredients; provided, that the department of safety may inspect such motor vehicles for purposes of safety rules and regulations under § 65-15-111.

Acts 1933, ch. 119, § 2; C. Supp. 1950, § 5501.2; Acts 1959, ch. 239, § 1; 1961, ch. 86, § 1; 1967, ch. 244, § 1; 1967, ch. 356, § 1; 1968, ch. 631, § 1; 1971, ch. 98, § 1; 1971, ch. 219, § 1; 1972, ch. 683, § 3; 1974, ch. 427, § 1; 1974, ch. 476, § 1; 1975, ch. 349, § 1; 1976, ch. 794, § 1; 1976, ch. 823, §§ 3, 4; 1977, ch. 163, § 1; 1977, ch. 275, § 1; 1979, ch. 424, § 1; T.C.A. (orig. ed.), § 65-1503; Acts 1982, ch. 622, § 2; 1992, ch. 590, § 1; 1994, ch. 705, § 3; 1994, ch. 774, § 2; 1995, ch. 305, § 30; 1999, ch. 97, §§ 2, 3; 2007, ch. 484, § 99.

Compiler's Notes. Acts 1994, ch. 774, § 1 provided the following statement of legislative findings and purpose:

“The general assembly finds:

1. In 1980, the United States Congress passed legislation deregulating the rates charged by motor carriers for transporting recyclable materials. This legislation is codified at Title 49, United States Code, Section 10733.
2. As a result of this congressional action, the rates for interstate transportation of recyclable materials are established through direct negotiation between the motor carrier and the shippers.
3. When recyclable materials are transported within the State of Tennessee, however, the rates for such intrastate transportation are established by the motor carrier and are filed as binding tariffs with the Public Service Commission.
4. The rates charged for interstate transportation of recyclable materials are consistently lower than the rates charged for intrastate transportation of recyclable materials.
5. Because the State of Tennessee is firmly committed to policies which will promote recycling, it is important to lower the costs associated with recycling whenever possible. The cost of transporting recyclable materials, is one of the largest costs associated with recycling.”

   Former § 65-15-121, referred to in (a)(19), was repealed by Acts 1999, ch. 97, § 22. Former § 65-15-115, referred to in (a)(4), was repealed by Acts 1999, ch. 97, § 21.

   Cross-References. Ridesharing, title 65, ch. 19, part 2.

   Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 58.

   Law Reviews.

   Evidence — Testimony as to Position of Vehicle after Collision Insufficient, 29 Tenn. L. Rev. 304 (1961).

   1. Constitutionality. 2. General Law Not Affected. 3. Liability of Persons Exempt from Provisions of Chapter. 4. Casual Trips.

   Exemption granted to any motor vehicle while used in the transportation of petroleum products when the owner, lessee, or bailee of the vehicle is legally and regularly engaged in the business of selling or distributing such petroleum products transported on such vehicles was not unconstitutional as creating an unreasonable classification. Gasoline Transp., Inc. v. Crozier, 210 Tenn. 96, 355 S.W.2d 98, 1962 Tenn. LEXIS 396 (1962).

   Although former subsection (e) (now subdivision (a)(19)) is unclear, it is not void for internal inconsistency or vagueness: the predominant intention of the legislature was to enact a grandfather clause, allowing carriers operating on May 17, 1971 to continue to operate under grandfather certificates of public convenience and necessity, but subject to future regulation by the public service commission as to safety rules and regulations, inspection of vehicles, etc. Fleet Transp. Co. v. Tennessee Pub. Serv. Comm'n, 545 S.W.2d 4, 1976 Tenn. LEXIS 615 (Tenn. 1976).

   Former subsection (e) (now subdivision (a)(7)) does not constitute invidious class legislation: this 1975 statute is no more than a belated grandfather clause to the 1971 enactment and any carrier in the state coming within its terms and making timely application could obtain its benefits. Fleet Transp. Co. v. Tennessee Pub. Serv. Comm'n, 545 S.W.2d 4, 1976 Tenn. LEXIS 615 (Tenn. 1976).

   Private act regulating taxicab business in city did not suspend general law regulating motor vehicles, since vehicles used exclusively for taxicabs are excluded from the provisions of the general law. Large v. Elizabethton, 185 Tenn. 156, 203 S.W.2d 907, 1947 Tenn. LEXIS 315 (1947).

   Where motor carrier operator came within subsection (d) (now subdivision (a)(13)) of this section and thus was not required to carry liability insurance as provided by § 65-15-115(c), operator was not liable for injuries to trespassing plaintiff who fell from wagon being drawn to the railroad by tractor driven by operator's employee who permitted plaintiff to ride on wagon contrary to operator's instructions. Ball v. Whitaker, 47 Tenn. App. 677, 342 S.W.2d 67, 1960 Tenn. App. LEXIS 101 (1960).

   Carriers duly certified by public service commission to carry passengers are not exempted from the jurisdiction of the commission whereby they can make casual trips upon solicitation of the party served. Hammer v. Franklin Interurban Co., 209 Tenn. 399, 354 S.W.2d 241, 1962 Tenn. LEXIS 370 (1962).

   Collateral References.

   Use of highway by private and contract motor carrier, scope of exemptions in statutes relating to. 109 A.L.R. 565, 175 A.L.R. 1333.

65-15-104. Sight-seeing buses not exempt.

Motor vehicles, for which passengers are solicited, and which are operated to and from points of interest in or near any city, and which, therefore, perform the same service as a sight-seeing bus, are not excepted from this part, and this part shall apply to such motor vehicles, whether the same be called “buses” or “for hire cars” or by any other name.

Acts 1933, ch. 119, § 2; C. Supp. 1950, § 5501.2; T.C.A. (orig. ed.), § 65-1504.

Cross-References. Jitney service, regulation by cities and towns, § 65-19-102.

Collateral References.

Motor buses, change from streetcars to, as affecting rights as between street railway company and abutting owners or owners across whose property the company has a right of way. 102 A.L.R. 391.

Motor buses, substitution of, for streetcars. 66 A.L.R. 1245.

Public service commission's power with respect to motive power. 5 A.L.R. 65, 39 A.L.R. 1517.

65-15-105. Interstate commerce and government business excepted.

Neither this part nor any provision thereof shall be construed to regulate or apply to commerce with foreign nations, or commerce among the several states of the United States, or to business conducted for the government of the United States, except insofar as the same may be permitted under the Constitution of the United States and the acts of congress.

Acts 1933, ch. 119, § 19; C. Supp. 1950, § 5501.21 (Williams, § 5501.19); T.C.A. (orig. ed.), § 65-1505.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 58.

65-15-106. Powers of department.

1. The department of safety is vested with the power and authority, and it is its duty, to license, supervise and regulate every motor carrier in the state and promulgate rules and regulations pertaining thereto.
2. 1. The department of safety shall designate enforcement officers charged with the duty of policing and enforcing this part, and such enforcement officers have authority to make arrests for violation of this part, orders, decisions, rules and regulations of the department of safety, or any part or portion thereof, and to serve any notice, order or subpoena issued by any court, the department of safety, its commissioner or any employee authorized to issue same, and to this end shall have full authority throughout the state.
   2. Such enforcement officers while enforcing and policing the provisions of this part also have authority to make arrests for any violations of the Tennessee Drug Control Act of 1989, compiled in title 39, chapter 17, part 4, and for violations of title 55, chapter 10, part 4, and § 55-50-408, when such violations are committed by a driver or an occupant of a vehicle regulated under this part.
   3. Such enforcement officers, upon reasonable belief that any motor vehicle is being operated in violation of this part, shall be authorized to require the driver thereof to:
      1. Stop and exhibit the registration certificate issued for such vehicle;
      2. Submit to such enforcement officer for inspection any and all bills of lading, waybills, invoices or other evidences of the character of the lading being transported in such vehicle; and
      3. Permit such officer to inspect the contents of such vehicle for the purpose of comparing same with bills of lading, waybills, invoices or other evidence of ownership or of transportation for compensation.
   4. It is the further duty of such enforcement officers to impound any books, papers, bills of lading, waybills and invoices which would indicate the transportation service being performed is in violation of this part, subject to the further orders of the court having jurisdiction over the alleged violation.
   5. Such enforcement officers shall also have the above authority with respect to anyone who procures, aids or abets any motor carrier in violation of this part or in such carrier's failure to obey, observe or comply with this part, or any such order, decision, rule, regulation, direction or requirement of the department of safety, or any part or portion thereof.
   6. In a case in which a penalty is not otherwise provided for in this part, such person commits a Class B misdemeanor and, upon conviction, shall be punished as provided for in § 65-15-113.
3. 1. It is lawful for enforcement officers of the department of safety, regularly employed by the department of safety, acting through its director, to wear or carry pistols or other firearms at such times as they are in uniform or on active duty, in like manner as city or metropolitan police officers, wildlife resources agency officers and Tennessee highway patrol officers.
   2. Department of safety enforcement officers may charge any person who is a driver, operator or occupant of a vehicle subject to department of safety jurisdiction pursuant to this chapter, and who has been charged with an offense involving the consumption or possession of alcoholic beverages, controlled substances or controlled substance analogues with a violation of § 39-17-1307, for the unlawful carrying or possession of a weapon. Any weapon possessed in violation of § 39-17-1307, may be confiscated by the arresting officer in accordance with § 39-17-1317. Weapons confiscated pursuant to this subsection (c), and declared contraband by the court of record exercising criminal jurisdiction, may be disposed of upon petition of the department of safety by the same procedure provided for weapon confiscations of the department of safety in § 39-17-1317.
   3. Those enforcement officers authorized to carry firearms while on duty may retain after twenty-five (25) years of honorable service and upon retirement from the department of safety their service weapon in recognition of their many years of good and faithful service.
4. Except as inconsistent with the express terms and provisions of this part, the Tennessee public utility commission has the same power as to and over rates, practices, regulation, control and operation of motor vehicles, to which this part is applicable, as the department of safety now has under present law, with reference to railroads and utilities; provided, that nothing in this subsection (d) is intended to impose regulations upon contract carriers except insofar as the nature and character of their business so justify under the constitutions of Tennessee and the United States and the valid laws made pursuant thereto.
5. The department is authorized to apply for federal funds that may be available and to conduct any new entrant audits and review and compliance inspections that may be required by regulations promulgated by the United States department of transportation.

Acts 1933, ch. 119, §§ 4, 15; C. Supp. 1950, §§ 5501.4, 5501.17 (Williams, § 5501.15); impl. am. Acts 1955, ch. 69, § 1; Acts 1961, ch. 326, § 1; 1973, ch. 383, § 1; impl. am. Acts 1974, ch. 481, § 21; Acts 1980, ch. 702, § 1; T.C.A. (orig. ed.), §§ 65-1506, 65-1520; Acts 1983, ch. 474, § 1; 1988, ch. 863, § 1; 1989, ch. 211, § 1; 1990, ch. 881, § 1; 1993, ch. 441, §§ 1, 2; 1995, ch. 305, § 30; 1999, ch. 97, §§ 4, 5; 2007, ch. 484, § 100; 2009, ch. 321, § 28; 2012, ch. 848, § 85; 2017, ch. 94, § 53.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” in (d).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Cross-References. Monitoring of radioactive truck traffic, § 68-202-104.

Penalty for Class B misdemeanor, § 40-35-111.

Power to regulate passenger transportation service and authority of department of safety, § 7-51-1005.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 58.

Law Reviews.

Administrative Law — 1961 Tennessee Survey (Val Sanford), 14 Vand. L. Rev. 1115 (1961).

65-15-107. Interstate permits.

1. It is unlawful for any motor carrier, contract hauler, or exempt for-hire motor carrier to use any of the public highways of this state for the transportation of persons or property, or both, in interstate or intrastate commerce, without first having received a permit from the department or from any state designated as the base jurisdiction state for that carrier pursuant to 49 U.S.C. § 11506 [omitted] as amended by § 4005 of the Intermodal Surface Transportation Efficiency Act of 1991. Violators are subject to penalty pursuant to § 65-15-113.
2. Such interstate permits, when issued, shall be subject to such rules and regulations as the department may thereafter legally prescribe.

Acts 1933, ch. 119, § 5; C. Supp. 1950, § 5501.5; impl. am. Acts 1955, ch. 69, § 1; Acts 1959, ch. 317, § 1; 1977, ch. 425, § 1; T.C.A. (orig. ed.), § 65-1507; Acts 1993, ch. 327, §§ 1, 2; 1995, ch. 305, §§ 30, 31; 1999, ch. 97, §§ 6-8.

Compiler's Notes. The Intermodal Surface Transportation Efficiency Act of 1991, referred to in this section, is codified primarily in U.S.C., title 49.

49 U.S.C. § 11506 was omitted in the general revision of this Subtitle IV. Interstate Transportation, by Act Dec. 29, 1995, P.L. 104-88, Title I, § 102(a), 109 Stat. 804, effective Jan. 1, 1996. Section 11506 provided for registration of motor carriers by a state.

For current similar provisions, see now 49 USC § 14504a relating to the Unified Carrier Registration System plan and agreement.

Cross-References. Liability insurance required, § 65-15-110.

Procedure for obtaining certificate or permit, § 65-15-109.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 58.

Law Reviews.

Report on Administrative Law to the Tennessee Law Revision Commission, 20 Vand. L. Rev. 777 (1967).

65-15-108. Void and unenforceable covenants, promises, agreements or understandings concerning motor carrier transportation contracts.

1. A covenant, promise, agreement or understanding in or in connection with or collateral to a motor carrier transportation contract purporting to indemnify the promisee against liability for damages resulting from the negligence of the promisee, the promisee's agents or employees, or indemnitee, is against public policy and is void and unenforceable.
2. Subsection (a) shall not apply to the Uniform Intermodal Interchange and Facilities Access Agreement administered by the Intermodal Association of North America or other agreements providing for the interchange, use or possession of intermodal chassis, containers or other intermodal equipment.

Acts 2008, ch. 636, § 1.

65-15-109. Applications for permits.

1. The department shall adopt rules prescribing the manner and form in which motor carriers and/or contract haulers shall apply for intrastate or interstate permits required by this part. Every application shall be in writing and accompanied by the payment of fifty dollars ($50.00).
2. Applications filed for the registration of interstate authority by motor carriers engaged in interstate commerce shall be made in writing and be on such forms as required by the rules and regulations of the department. The application shall contain, among other things:
   1. A copy of the interstate commerce commission certificate or permit for which application is made;
   2. An equipment list registering and identifying vehicles used in the operation under such interstate commerce commission certificate or permit;
   3. Evidence of currently effective insurance or qualifications as a self-insurer under the rules and regulations of the department; and
   4. A filing of designation of a local agent for service of process;

      provided, that the fee for additional authority shall not be refundable, except after a request by the carrier within six (6) months of the payment of such fee.

3. 1. The department shall by rule promulgate the requirements for motor carriers, contract haulers, and exempt for-hire motor carriers operating on an interstate or intrastate basis, permanently or temporarily, to register their vehicles pursuant to 49 U.S.C. § 11506 [omitted] as amended by § 4005 of the Intermodal Surface Transportation Efficiency Act of 1991. Under this single state registration plan, carriers registering with Tennessee shall file a written application annually on forms provided by the department. The application shall be accompanied by a fee of eight dollars ($8.00) for every motor vehicle to be operated by the above-mentioned carriers or contract haulers over the public highways of Tennessee in the calendar year for which the permit is issued. The application shall also be accompanied by the fees charged for every vehicle to be operated in those states participating in the single state registration plan for the same time period. The department shall remit those fees collected on behalf of the other states as provided under relevant interstate commerce commission rules. The application for single state registration shall contain among other things:
      1. Evidence of the interstate commerce commission authority or permit under which the motor carrier operates in interstate commerce, where applicable;
      2. Equipment list identifying vehicles to be operated in Tennessee and other participating states as permitted by interstate commerce commission rule;
      3. Satisfactory proof of currently effective insurance as determined by the department;
      4. Designation of a local agent for service of process; and
      5. The accompanying fees and all information required on vehicles to be operated in other participating states.
   2. All rules to implement single state registration of motor vehicles shall be in conformity with the rules of the interstate commerce commission, 49 C.F.R. Part 1023.

Acts 1933, ch. 119, § 8; C. Supp. 1950, § 5501.9 (Williams, § 5501.8); Acts 1969, ch. 47, §§ 1, 2; 1971, ch. 168, §§ 1-4; 1977, ch. 183, § 1; 1977, ch. 425, § 2; 1979, ch. 137, § 2; T.C.A. (orig. ed.), § 65-1511; Acts 1985, ch. 94, § 1; 1986, ch. 862, § 3; 1993, ch. 327, §§ 3, 4; 1995, ch. 305, § 30; 1999, ch. 97, §§ 10-14.

Compiler's Notes. 49 U.S.C. § 11506 was omitted in the general revision of this Subtitle IV. Interstate Transportation, by Act Dec. 29, 1995, P.L. 104-88, Title I, § 102(a), 109 Stat. 804, effective Jan. 1, 1996. Section 11506 provided for registration of motor carriers by a state.

For current similar provisions, see now 49 USC § 14504a relating to the Unified Carrier Registration System plan and agreement.

Cross-References. Petitions to be in writing, filing fee, § 65-2-103.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 58.

65-15-110. Liability insurance requirements. [For contingent operation, see the Compiler's Notes.]

1. No interstate or intrastate permit shall be issued by the department until such carrier shall have filed with the department, and the department shall have approved, a policy of liability insurance or bond and also, in the case of intrastate common carriers, a policy of cargo or passenger insurance in some reliable insurance company or association or other insurer satisfactory to the department and authorized to transact insurance business in this state, in such amount and such forms and upon such conditions as the department may deem necessary to adequately protect the interests of the public in the use of the public highway and with due regard to the number of persons and the amount of property to be transported, which liability or cargo insurance shall bind the obligors thereunder to make compensation for injury to persons, and loss of or damage to property resulting from the negligent operation by such motor carrier or contract hauler. No other or additional policies of insurance, bonds, or licenses than those prescribed herein shall be required of any motor carrier or contract hauler to which this chapter applies by any city, town or other subdivision of this state; provided, that this section shall not be so construed as to interfere with the right of any county, city or other civil subdivision of this state, to levy and collect any lawful tax to which such motor carrier or contract hauler is liable under the general revenue laws of this state within such county, state or other civil subdivision.

   [For contingent operation, see the Compiler's notes.]

2. Any operator of a whitewater rafting outfitting company or other paddle and floating water activity operator who provides services to consumers on intrastate waterways and who transports customers distances not to exceed twenty-five (25) miles by motor carrier shall have filed with the department, and the department shall have approved, a policy of liability insurance in the amount of not less than one million dollars ($1,000,000). Such policy of insurance shall meet the requirements of subsection (a) and shall bind the obligors thereunder to make compensation for injury to persons and for loss of or damage to property resulting from the negligent operation by such operator.

Acts 1933, ch. 119, § 9; C. Supp. 1950, § 5501.10 (Williams, § 5501.9); impl. am. Acts 1955, ch. 9, § 1; T.C.A. (orig. ed.), § 65-1512; Acts 1995, ch. 305, § 30; 1999, ch. 97, § 15; 2001, ch. 190, § 1.

Compiler's Notes. Acts 2001, ch. 190, § 2, provided:

“This act shall become operative only if the federal highway administrator advises the commissioner of safety in writing that the provisions of this act shall not render Tennessee in violation of federal laws and regulations and subject to penalties prescribed therein.”

Acts 2001, ch. 190, § 1 added (b).

Acts 2001, ch. 190, § 3, provided: “The provisions of this act shall be null and void if such provisions are superseded by subsequent federal enactment.”

Law Reviews.

No-Fault Insurance, 39 Tenn. L. Rev. 132 (1971).

65-15-111. Safety rules and regulations — Inspection of vehicles, etc.

1. The department of safety, by the authority vested in it by this part to license, supervise and regulate certain motor vehicles operating on the highways of Tennessee, shall periodically promulgate such safety rules and regulations as the department of safety deems necessary to govern and control the safety operations and safe use of equipment by the following:
   1. Each holder of an interstate or intrastate permit;
   2. Any individual, corporation or partnership operating a motor vehicle in commerce which has a gross vehicle weight rating or gross combination weight rating of ten thousand and one (10,001) or more pounds, or the motor vehicle is designed to transport more than fifteen (15) passengers, including the driver; and
   3. Any individual, corporation or partnership operating a motor vehicle of any gross vehicle weight transporting hazardous material. The safety rules and regulations described in this chapter do not apply to any motor vehicle transporting nonhazardous materials for farm purposes which does not travel outside the boundaries of this state.
2. The department of safety may inspect these motor vehicles for the purpose of safety.
3. This section applies only to the safety inspection of such vehicles, and does not require the department to issue certificates of convenience and necessity, contract hauler's permits or interstate permits to motor vehicles operating under this section.
4. Vehicles, trailers, semi-trailers and pole trailers subject to this section are placed under the jurisdiction of the department of safety's statutes, rules and regulations pertaining to safety, and every officer, agent or employee of any corporation or any other person who violates or fails to comply with this section or who procures, aids or abets in the violation of this section shall be subject to the penalties provided in § 65-15-113.
5. 1. The department of safety shall inspect and certify all homemade or materially reconstructed trailers, semi-trailers, and pole trailers which are required to be titled or registered in accordance with title 55, chapters 1-6, for compliance with all applicable safety rules and regulations promulgated by the department of safety.
   2. The fee for such inspection to be collected by the department of safety is twenty-five dollars ($25.00) per trailer inspected. The department of safety may promulgate rules and regulations to implement this subsection (e).
6. Notwithstanding the provisions of this chapter to the contrary, 49 CFR parts 390-397, shall not apply to commercial motor vehicles operated in intrastate commerce to transport property that have a gross vehicle weight rating or gross combination weight rating of twenty-six thousand pounds (26,000 lbs.) or less; provided, that a Tennessee highway patrol officer with Level I training, having probable cause to believe such a commercial motor vehicle is being operated with unsafe loading or mechanical conditions, may stop such motor vehicle for inspection. If such motor vehicle is determined to be operated with unsafe loading or mechanical conditions, no citation may be issued, however, the officer shall implement out-of-service requirements as set forth in the commercial vehicle safety alliance out-of-service criteria. The exception provided by this subsection (f) shall not apply to vehicles transporting hazardous materials required to be placarded, or to vehicles designed to transport sixteen (16) or more passengers, including the driver, as defined in title 49 of the CFR.

Acts 1933, ch. 119, § 11; C. Supp. 1950, § 5501.12 (Williams, § 5501.11); Acts 1972, ch. 632, §§ 1-4; 1979, ch. 424, § 3; T.C.A. (orig. ed.), § 65-1515; Acts 1985, ch. 111, § 1; 1988, ch. 817, §§ 5, 6; 1993, ch. 270, § 1; 1993, ch. 327, § 5; 1994, ch. 705, §§ 1, 2; 1995, ch. 305, § 30; 1999, ch. 97, §§ 18, 19; 2005, ch. 400, § 1; 2007, ch. 484, § 101; 2010, ch. 986, § 1; T.C.A. § 65-15-113.

Code Commission Notes.

This section was renumbered from § 65-15-113 to § 65-15-111 by authority of the code commission in 2015.

Cross-References. Safety rules for homemade trailers, § 55-4-101.

65-15-112. Inspection, control, and supervision fee — Motor vehicle account.

1. 1. Beginning January 1, 1994, for that calendar year and each calendar year thereafter, every freight motor vehicle required to register with the state pursuant to § 55-4-113, with the exception of those vehicles described in § 55-4-113(4), shall pay a safety inspection fee. This safety inspection fee shall provide a means for the state to exercise its police powers in order to protect the highways, and to promote the safety of the traveling public by the regulation of the use of and safe operation of such vehicles over the highways. This safety inspection fee shall be an amount equal to two and one-half percent (2.5%) of the vehicle registration fees prescribed in § 55-4-113, for those freight motor vehicles subject to the fee. This fee to the department of safety shall be paid in addition to all property, franchise, license, or other taxes, fees and charges assessed or charged by law against the vehicle.
   2. This safety inspection fee shall be paid annually as a part of the registration taxes due to the state for such freight motor vehicles. This fee shall be remitted to the department of revenue and shall be paid over to the department of safety for use in accordance with this section.
2. It is the duty of the department of safety to keep separate account of the safety inspection fees paid over to it by the department of revenue and to segregate them in an account to be known as the “motor vehicle account.” Any funds remaining in the motor vehicle account at the end of the year shall be carried over from year to year and expended only for the purposes specified in this part.
3. The department of revenue shall not issue or renew a certificate of registration or permit for any freight motor vehicle that fails to pay the annual safety inspection fee.
4. A lien is declared, and shall exist, upon all the property of each such certificate or permit holder, which shall be used upon the highways of this state, and upon which such fees shall be properly payable, for the payment of the fees prescribed by this part, together with all penalties accruing hereunder, which lien shall be superior to all other liens, except federal, state, county and municipal taxes.
5. All fines levied by the department of safety as well as all fees and penalties collected by the department of safety under this part shall be paid into the state treasury to the credit of the motor vehicle account, and used to defray the expenses incurred by the department in the enforcement of this part.

Acts 1933, ch. 119, § 14; 1941, ch. 70, § 1; C. Supp. 1950, § 5501.15 (Williams, § 5501.14); impl. am. Acts 1955, ch. 69, § 1; Acts 1955, ch. 148, § 1; 1961, ch. 326, § 2; 1971, ch. 168, § 5; 1972, ch. 471, § 1; 1979, ch. 137, § 1; T.C.A. (orig. ed.), § 65-1518; Acts 1989, ch. 371, § 1; 1993, ch. 327, §§ 6-9; 1995, ch. 305, § 30; 2007, ch. 484, § 102; T.C.A. § 65-15-116.

Code Commission Notes.

This section was renumbered from § 65-15-116 to § 65-15-112 by authority of the Code Commission in 2015.

Cross-References. Supervision fee and inspection provisions inapplicable, § 65-15-111.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 58.

65-15-113. Penalties for violations.

1. Notwithstanding Acts 1989, ch. 591, § 113, every officer, agent or employee of any corporation, or any other person who knowingly violates or fails to comply with or who procures, aids or abets in the violation of this part, commits a Class B misdemeanor, and upon conviction thereof for the first offense shall be punished by a fine of not less than twenty-five dollars ($25.00), for the second offense shall be punished by a fine of not less than fifty dollars ($50.00), and for the third offense be punished by a fine not less than one hundred dollars ($100). Each day any such provision is violated is a separate offense.
2. Every officer, agent or employee of any corporation and every other person who knowingly fails to obey, observe or comply with any order, decision, rule, regulation, direction, demand or requirement of the department made in pursuance of the power and authority conferred by this part, commits a Class B misdemeanor, and upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars ($500) or by imprisonment not to exceed six (6) months, or both, in the discretion of the court. Each day any such order, decision, rule or regulation, etc., of the department of safety is violated, is a separate offense. The fact that there may have been a prosecution for the violation of any such order, decision, rule or regulation, etc., of the department of safety under this section does not operate to prevent or limit the commissioner of safety from requesting that the commissioner of revenue suspend or revoke the interstate permit or intrastate permit, or both, as provided in this part and, upon receipt of such a request from the commissioner of safety, the commissioner of revenue shall immediately make the suspension or revocation requested.

Acts 1933, ch. 119, § 17; C. Supp. 1950, § 5501.19 (Williams, § 5501.17); T.C.A. (orig. ed.), § 65-1524; Acts 1989, ch. 591, § 113; 1990, ch. 881, § 2; 1993, ch. 382, § 1; 1995, ch. 305, § 30; 1999, ch. 97, §§ 23, 24; 2007, ch. 484, § 103; T.C.A. § 65-15-122.

Code Commission Notes.

This section was renumbered from § 65-15-122 to § 65-15-113 by authority of the Code Commission in 2015.

Compiler's Note. Acts 1989, ch. 591, § 113, referenced in subsection (a), had directed  the executive secretary of the Tennessee Code Commission to amend this section to indicate violation of the section is a Class C misdemeanor.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

65-15-114. Transporting nuclear fuel.

1. “Spent nuclear fuel” means as defined in 42 U.S.C. § 10101(12) and (23) and the following:
   1. The highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations;
   2. Other highly radioactive material that is designated by the nuclear regulatory commission by rule for permanent isolation; and
   3. Fuel that has been withdrawn from a nuclear reactor following irradiation, the constituent elements of which have not been separated by reprocessing.
2. No person, firm, or corporation shall cause to be shipped or shall arrange for transportation upon the highways or railways of this state any spent nuclear fuel unless such person, firm or corporation notifies the emergency management agency which shall notify the department of safety (hereinafter referred to as the “department”) in advance of any transportation of spent nuclear fuel through or within the state. In the case of spent nuclear fuel for which by law the United States nuclear regulatory commission notifies the governor, the governor or the governor's designee shall within twenty-four (24) hours after receipt of such notification, notify the department of the transportation of such materials. The notification of such shipments and all facts and circumstances relevant thereto shall be kept confidential and shall not be disclosed to the public in the interest of national security.
3. 1. A fee shall be assessed for all nuclear spent fuel shipments at the rate of one thousand dollars ($1,000) per cask for truck shipments, and two thousand dollars ($2,000) per cask for rail shipments received at or departing from any nuclear power station or away from a reactor spent fuel storage facility located in Tennessee. The owner of such facility shall pay this fee. The same fees prescribed by this subsection (c) shall apply to all spent nuclear fuel shipments traversing this state and the shipper of such shipments shall pay these fees.
   2. Any person, firm, or corporation shipping or arranging transportation of nuclear spent fuel within or through this state shall in advance of such shipments maintain a bond or surety with a bonding or insurance company, satisfactory to the department of safety and authorized to do business in this state, in such form and for such amount as the department of safety may prescribe, to guarantee payment of the fees prescribed by this section. Failure to pay any fees due and owing under this section within the sixty (60) days following shipments of nuclear spent fuel shall authorize the department of safety to proceed against the shipper's bond.
   3. The fees collected pursuant to this section shall be deposited into the general fund in a special account entitled the nuclear safety fund. The moneys in this fund shall only be used to fund activities related to the state's nuclear safety enforcement program and shall only be allocated to the department of safety, the department of environment and conservation, and the Tennessee emergency management agency to cover reasonable expenses incurred by each respective agency in implementing and enforcing this section.
4. Any person, firm, or corporation shipping or arranging transportation for the shipment of nuclear spent fuel and subject to this section shall provide an appropriate escort for all such shipments within or through this state. The acceptable training, manpower, and equipment requirements for the provision of this escort service shall be established by department rule.
5. This section applies to all shipments of nuclear spent fuel originating in, destined to or traversing this state.
6. 1. The department of safety is authorized to adopt, promulgate, amend and repeal rules and regulations necessary to implement this section.
   2. No rule or regulation, safety or otherwise, adopted, promulgated, amended or repealed by the department of safety under the authority of this section concerning transportation of nuclear materials shall impose a requirement which is more restrictive or inconsistent with that of any existing rule or regulation promulgated or adopted by the United States nuclear regulatory commission or the United States department of transportation.

Acts 1979, ch. 424, § 2; T.C.A., § 65-1528; Acts 1989, ch. 319, §§ 1-6; 1991, ch. 391, § 3; 1995, ch. 305, § 30; 2007, ch. 484, § 104; T.C.A. § 65-15-126.

Code Commission Notes.

This section was renumbered from § 65-15-126 to § 65-15-114 by authority of the Code Commission in 2015.

Cross-References. Confidentiality of public records, § 10-7-504.

Monitoring of radioactive truck traffic, § 68-202-104.

Attorney General Opinions. Constitutionality, OAG 89-97, 1989 Tenn. AG LEXIS 83 (7/17/89).

65-15-115. Powers and duties — Citizen transportation area.

1. Upon petition by a county mayor or the legislative body of any county, the department of safety is authorized to designate that county a “citizen transportation area” authorizing the use of church buses, privately owned school buses, and private citizens to carry passengers for compensation within the boundaries of the county.
2. The department of safety in designating the county a “citizen transportation area” shall consider the availability of regular fixed route bus service to the area, the charter service actually provided to the citizens of the area by the existing franchised carriers, the potential service available to the community if regulatory requirements were relaxed, and whether the transportation needs of the citizens of that area are best met by the existing regulatory statutes.
3. The designation shall continue until revoked by the department of safety upon due notice and an opportunity to be heard.
4. However, the department of safety may inspect vehicles for purpose of safety and vehicles shall be subject to § 65-15-111.

Acts 1977, ch. 279, § 1; 1978, ch. 934, § 21; T.C.A., §§ 5-619, 5-6-119; Acts 1995, ch. 305, § 30; 2003, ch. 90, § 2; 2007, ch. 484, § 105; T.C.A. § 65-15-127.

Code Commission Notes.

This section was renumbered from § 65-15-127 to § 65-15-115 by authority of the Code Commission in 2015.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

65-15-116. Passenger transportation services.

1. Notwithstanding this title or title 7, chapter 51, to the contrary, each for-hire motor carrier providing passenger transportation service in a motor vehicle or motor vehicles designed or constructed to accommodate and transport passengers, eight (8) or more in number, services exclusive of the driver, or any motor vehicle transporting passengers who are TennCare enrollees eligible for such transportation services under TennCare, excluding those vehicles licensed and permitted pursuant to title 68, chapter 140, part 3, shall at a minimum:
   1. Maintain a policy of liability insurance in the amount of not less than one million dollars ($1,000,000) in value, which shall bind the obligors under the policy to make compensation for injury to persons and for loss of or damage to property resulting from the negligent operation by the driver, unless the transportation provider is a self insured local government or public transportation provider;
   2. Conduct a program of mandatory random drug testing for the operators of its motor vehicles in accordance with regulations promulgated by the United States department of transportation;
   3. Require the operators of its motor vehicles to submit to physical examination every two (2) years, in accordance with regulations promulgated by the United States department of transportation;
   4. Subject each transportation provider operating in the capacity as a passenger transportation service to an annual safety examination compliance review to be conducted by the department of safety. For purposes of this section, “compliance review” means reviewing:
      1. Proof of insurance or self insured status;
      2. Employee random drug testing documents;
      3. Employee physical examination documents; and
      4. Vehicle maintenance records; and
   5. Comply with all other requirements deemed necessary to protect the public safety and welfare as specified by the department of safety in its promulgation of rules and regulations to effectuate such purpose.
2. The commissioner of safety is authorized to promulgate rules and regulations to effectuate the purposes of this section. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2007, ch. 329, §§ 1, 2; 2009, ch. 321, § 29; 2010, ch. 1013, § 1; 2012, ch. 539, § 1; T.C.A. § 65-15-128.

Code Commission Notes.

This section was renumbered from § 65-15-128 to § 65-15-116 by authority of the Code Commission in 2015.

65-15-117. Motor carrier safety improvement.

1. The deployment, implementation, or use of a motor carrier safety improvement by or as required by a motor carrier or its related entity, including by contract, shall not be considered when evaluating an individual's status as an employee or independent contractor, or as a jointly employed employee, under any state law.
2. For purposes of this section, “motor carrier safety improvement” means any device, equipment, software, technology, procedure, training, policy, program, or operational practice intended and primarily used to improve or facilitate any of the following:
   1. Compliance with traffic safety or motor carrier safety laws;
   2. Safety of a motor vehicle;
   3. Safety of the operator of a motor vehicle; or
   4. Safety of third-party users of public roadways.

Acts 2019, ch. 97, § 1.

Compiler's Notes. Acts 2019, ch. 97, § 2 provided that nothing in the act shall affect the liability of common carriers, motor carriers, private motor carriers, or trucking companies, as provided in the federal Motor Carrier Safety Act of 1986 (49 U.S.C. §§ 13901 et seq.); federal motor carrier safety regulations of the federal motor carrier safety administration, compiled in 49 C.F.R. §§  350 - 399; Tennessee Code Annotated, Title 65, Chapter 15, Part 1; and rules and regulations promulgated pursuant to Tennessee Code Annotated, Sections 65-15-106 and 65-15-113, pertaining to the supervision and control of motor carrier vehicles and motor buses, including, but not limited to, Tenn. Comp. R. & Reg. 1340-06-01-.08.

Effective Dates. Acts 2019, ch. 97, § 3. March 28, 2019.

Part 2
Voluntary Safety Inspection

65-16-101— 65-16-121. [Repealed.]

Compiler's Notes. Former chapter 16, part 1, §§ 65-16-101 — 65-16-121 (Acts 1875, ch 142, § 13; 1887, ch. 15, § 1, ch. 189, § 1; 1889, ch. 149, § 1; 1891, ch. 9, § 1; 1894, ch. 29, §§ 1, 3; 1898 (E.S.), ch. 8, § 1; 1901, ch. 166, § 1; 1903, ch. 321, §§ 1, 2, ch. 406 §§ 1, 2; 1907, ch. 433, §§ 1-4, ch. 446, § 1; 1909, ch. 352, § 1, ch. 392, §§ 1-3, ch. 563, § 1; 1917, ch. 69, §§ 1, 2; 1929, ch. 76, §§ 1-3; Shan., §§ 1536, 1880a13, 2393, 2395, 2395a1 — 2395a3, 2399 — 2402, 2404, 2405, 2407 — 2409, 2411, 2411a1, 2411a3 — 2411a5, 2411a7 — 2411a12, 2411a15, 2411a17, 2411a18; Shan. Supp., §§ 2411a19, 2411a20; Code 1932, §§ 3158, 4014, 4016 — 4019, 4021 — 4026, 4028 — 4033, 4037 — 4046, 4049 — 4053; Acts 1943, ch. 51, § 1, ch. 52, § 1; 1945, ch. 97, § 1; 1949, ch 276, § 1; C. Supp., 1950, § 5447.1; Acts 1953, ch. 58, § 1; 1955, ch. 69, § 1; 1976, ch. 823, §§ 2, 4; 1978, ch. 934, § 7, 36; T.C.A. (orig. ed.), §§ 65-1601 — 65-1605, 65-1609 — 65-1624, 65-1626 — 65-1638, 65-1701 — 65-1703; Acts 1995, ch. 305, §§ 33), concerning street and interurban railroads, powers, construction and maintenance, was repealed by Acts 2003, ch. 19, § 2, effective April 11, 2003.

Part 2
Equipment and Operation [Repealed]

NOTES TO DECISIONS

1. Right to a Crossing.

Property owner is not entitled to crossing where expense of construction and maintenance is out of proportion to benefits to property owner. Shipp v. Belt R. Co., 133 Tenn. 238, 180 S.W. 318, 1915 Tenn. LEXIS 89 (1915).

Right to crossing includes not only main lines but also side tracks, spurs and switch yards. Shipp v. Belt R. Co., 133 Tenn. 238, 180 S.W. 318, 1915 Tenn. LEXIS 89 (1915).

2. Estoppel of Owner.

Property owner was estopped to claim crossing where warranty deed granted railroad a fee to strip of land without reserving a crossing. Shipp v. Belt R. Co., 133 Tenn. 238, 180 S.W. 318, 1915 Tenn. LEXIS 89 (1915).

65-19-101. Common carrier — Business declared a privilege.

Any person operating for hire any public conveyance propelled by steam, gasoline, electricity, or other motive power, for the purpose of affording a means of street transportation similar to that ordinarily afforded by street railways (but not operated upon fixed tracks) by indiscriminately accepting and discharging such persons as may offer themselves for transportation along the course of operation, is declared to be a common carrier, and the business of all such common carriers is declared to be a privilege.

Acts 1915, ch. 60, § 1; Shan., § 3079a199; mod. Code 1932, § 5533; T.C.A. (orig. ed.), § 65-1901.

Cross-References. Citizen transportation area, § 65-15-115.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, §§ 22, 23; 5 Tenn. Juris., Carriers, § 2, 58.

65-19-102. Permit from city or town required.

It is unlawful for any such common carrier to use or occupy any street, alley or other public place in any incorporated city or town, without first obtaining from such city or town a permit or license by ordinance giving the right to so use or occupy such public place, such permit or license to embody such routes, terms and conditions as such city or town may elect to impose; provided, that no such permit or license shall be granted which does not require the execution and filing of a bond as provided for in § 65-19-103.

Acts 1915, ch. 60, § 2; Shan., § 3079a200; Code 1932, § 5534; T.C.A. (orig. ed.), § 65-1902.

65-19-103. Bond required.

Any such common carrier, before operating any public conveyance as aforementioned, in addition to obtaining such a permit or license, shall execute to the state and file with the county clerk of the county in which the business is to be carried on, and renew or increase from time to time as may be required by such city or town, a bond with good and sufficient surety or sureties, to be approved by the mayor of such incorporated city or town, in such sum as such city or town may reasonably demand, in no case, however, in a sum less than five thousand dollars ($5,000) for each car operated, conditioned that such common carrier will pay any damage that may be adjudged finally against such carrier as compensation for loss of life or injury to person or property inflicted by such carrier or caused by the negligence of the carrier.

Acts 1915, ch. 60, § 3; Shan., § 3079a201; Code 1932, § 5535; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 65-1903.

65-19-104. Use of streets without permit — Operation without bond — Penalty.

Any such common carrier, which shall use or occupy any such public place in any incorporated city or town without first obtaining such a permit or license, or shall operate any such conveyance, without first executing and filing such bond, commits a Class C misdemeanor for each offense. Each day upon which such common carrier so unlawfully uses or occupies any such public place in any incorporated city or town of this state is a separate offense.

Acts 1915, ch. 60, § 4; Shan., § 3079a202; Code 1932, § 5536; T.C.A. (orig. ed.), § 65-1904; Acts 1989, ch. 591, § 113.

Cross-References. Penalties for Class C misdemeanors, § 40-35-111.

65-19-105. Authority to grant permits — Restriction.

All incorporated cities and towns are empowered to grant such permits or licenses to such common carriers, and to fix in such licenses and permits the routes, terms, and conditions upon which such common carriers may operate, subject to the above limitations; provided, that no license or permit shall be granted to any such common carrier, without the execution and filing of the above recited bond being required.

Acts 1915, ch. 60, § 5; Shan., § 3079a203; Code 1932, § 5537; T.C.A. (orig. ed.), § 65-1905.

65-19-106. Privilege tax.

All such incorporated cities and towns are empowered to impose upon all such common carriers a tax for the exercise of the privilege allowed to be granted by this part.

Acts 1915, ch. 60, § 5; Shan., § 3079a204; mod. Code 1932, § 5538; T.C.A. (orig. ed.), § 65-1906.

Cross-References. Levy of privilege taxes by cities, § 67-4-501.

Part 2
Tennessee Ridesharing Act

NOTES TO DECISIONS

1. Constitutionality.

The statute is not unconstitutional as depriving the original purchaser of a property right without due process of law. Samuelson v. State, 116 Tenn. 470, 95 S.W. 1012, 115 Am. St. Rep. 805, 1906 Tenn. LEXIS 10, 115 Am. St. Rep. 805 (1906).

The statute, in its application to nontransferable signature passenger tickets for passage from Tennessee into another state, is not invalid as an unwarranted interference with interstate commerce or interstate passenger travel. Samuelson v. State, 116 Tenn. 470, 95 S.W. 1012, 115 Am. St. Rep. 805, 1906 Tenn. LEXIS 10, 115 Am. St. Rep. 805 (1906).

The statute is not unconstitutional as class legislation suspending a general law for the benefit of particular individuals, because it is in the proper exercise of the police power. Samuelson v. State, 116 Tenn. 470, 95 S.W. 1012, 115 Am. St. Rep. 805, 1906 Tenn. LEXIS 10, 115 Am. St. Rep. 805 (1906).

65-21-101. Special powers of corporations.

Telegraph and telephone corporations may construct a telegraph or telephone line and erect the necessary fixtures along, or over, or under the line of any public highway, the streets of any village, town, or city, across, or over, or under rivers, or any land belonging to the state, or along, across, or under county roads, and also over the lands of private individuals in pursuance of the general law authorizing the condemnation of the easement of right of way for works of internal improvement as set forth in title 29, chapter 16; provided, that the ordinary use of such public highway, streets, or county road be not thereby obstructed or the navigation of such waters impeded.

Acts 1875, ch. 142, § 8; 1907, ch. 134, § 1; Shan., § 2444; Code 1932, § 4055; T.C.A. (orig. ed.), § 65-2101.

Cross-References. Assessment of property for tax purposes, title 67, ch. 5, part 13.

Right of way for lines, microwave relay towers, §§ 65-21-201, 65-21-202.

Utility location, title 13, ch. 24, part 3.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Eminent Domain, § 7; 23 Tenn. Juris., Telecommunications, § 3.

Law Reviews.

Water Rights in Tennessee (Mahlon L. Townsend), 27 Tenn. L. Rev. 557 (1960).

65-21-102. Railroad enabled to operate telegraph and telephone.

Any railroad company incorporated by or under the laws of or operating lines of railroad within this state, and operating telegraph and telephone lines in connection therewith, upon filing its assent to this chapter in the office of the secretary of state, shall thereby become clothed with the rights, powers, and duties provided by this chapter for telegraph and telephone companies, so as to enable telegraph or telephone companies to be operated by it.

Acts 1885, ch. 66, § 12; Shan., § 1843; mod. Code 1932, § 3108; T.C.A. (orig. ed.), § 65-2102.

65-21-103. Local regulation.

Any village or city within which such line may be constructed shall have all reasonable police powers to regulate the construction, maintenance, or operation of the line within its limits, including the right to exact rentals for the use of its streets and to limit the rates to be charged; provided, that such rentals and limitations as to rates are reasonable and imposed upon all telephone and telegraph companies without discrimination. No village, town, or city shall have the right to prevent the company from constructing, maintaining, and operating the line within the village, town, or city, so long as the line is being constructed, maintained, or operated within the village, town, or city, in accordance with the reasonable police regulations.

Acts 1907, ch. 134, § 1; Shan., § 2444a1; Code 1932, § 4056; T.C.A. (orig. ed.), § 65-2103.

65-21-104. Consolidation of telephone and electric light companies.

It is lawful for telephone and electric light companies to consolidate into one (1) corporation, or partially consolidate or cooperate in such manner as the respective corporations may determine, with the concurrence of the stockholders of each; but the rights and privileges conferred by this section shall be subject to revocation and repeal.

Acts 1883, ch. 232, § 3; Shan., § 2202; mod. Code 1932, § 4059; T.C.A. (orig. ed.), § 65-2104.

Collateral References.

Merger or consolidation without required permit as affecting validity of contracts. 30 A.L.R. 890, 42 A.L.R. 1226, 118 A.L.R. 646.

65-21-105. Use of poles of other companies.

No telegraph or telephone company, or other such company, shall be permitted to attach its lines to, or otherwise use, the poles of any other telegraph or telephone company without the consent of such company being first had and obtained.

Acts 1885, ch. 135, § 1; Shan., § 1869; Code 1932, § 3135; T.C.A. (orig. ed.), § 65-2110.

Cross-References. Exclusive rights not permitted, § 65-21-203.

Textbooks. Tennessee Jurisprudence, 23 Tenn. Juris., Telecommunications, § 7.

65-21-106. Discrimination in telephone connections prohibited.

Every telephone company doing business within this state, and engaged in a general telephone business, shall supply all applicants for telephone connection and facilities, without discrimination or partiality; provided, that such applicants comply or offer to comply with the reasonable regulations of the company. No such company shall impose any condition or restriction upon any such applicant that is not imposed impartially upon all persons or companies in like situations, nor shall such company discriminate against any individual or company engaged in lawful business by requiring, as condition for furnishing such facilities, that they shall not be used in the business of the applicant or otherwise, under penalty of one hundred dollars ($100) for each day such company continues such discrimination and refuses such facilities after compliance or offer to comply with the reasonable regulations, and time to furnish the same has elapsed, to be recovered by the applicant whose application is so neglected or refused.

Acts 1885, ch. 66, § 11; Shan., § 1842; Code 1932, § 3107; T.C.A. (orig. ed.), § 65-2111.

Textbooks. Tennessee Jurisprudence, 23 Tenn. Juris., Telecommunications, § 5, 6.

Law Reviews.

Administrative Law — 1956 Tennessee Survey (James B. Earle), 9 Vand. L. Rev. 913 (1956).

65-21-107. Government messages.

1. In consideration of the right-of-way over public property pursuant to §§ 65-21-101 and 65-21-201, every telegraph or telephone corporation shall, in the case of war, insurrection, or civil commotion of any kind, and for the arrest of criminals, give immediate dispatch, at the usual rates of charge, to any message connected therewith of any officer of the state or of the United States.
2. Any officer or agent of a telegraph or telephone company who fails or refuses to carry out the provisions of subsection (a) commits a Class A misdemeanor.

Acts 1885, ch. 66, §§ 5, 6; 1907, ch. 134, § 1; Shan., §§ 1835, 1836, 2444a2; Code 1932, §§ 3099, 3100, 4057; T.C.A. (orig. ed.), §§ 65-2112, 65-2113; Acts 1989, ch. 591, § 111.

Cross-References. Penalties for Class A misdemeanors, § 40-35-111.

65-21-108. Priority of messages — Privacy.

1. All other messages, including those received from other telegraph or telephone companies, shall be transmitted in order of their delivery, correctly, and without unreasonable delay, and at the usual rates, and shall be kept strictly confidential, subject, however, to disclosure in any legal proceedings; provided, that arrangements may be made with the publishers of newspapers for the transmission of intelligence of general and public interest.
2. Any officer or agent of a telegraph or telephone company who willfully violates subsection (a) commits a Class A misdemeanor, and the telegraph or telephone company so violating is liable in damages to the party aggrieved.

Acts 1875, ch. 142, § 8; 1885, ch. 66, §§ 7, 8; 1907, ch. 134, § 1; Shan., §§ 1837, 1838, 2445; Code 1932, §§ 3101, 3102, 4058; modified; T.C.A. (orig. ed.), §§ 65-2114, 65-2115; Acts 1989, ch. 591, § 111.

Compiler's Notes. This section is deemed superseded, insofar as interstate communications are concerned, by federal law. See McCollum v. Western Union Tel. Co., 180 Tenn. 403, 175 S.W.2d 544 (1943).

Cross-References. Penalties for Class A misdemeanors, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Interstate Commerce, § 8; 23 Tenn. Juris., Telecommunications, § 13.

Attorney General Opinions. Access to bank and telephone records for commercial purposes, OAG 98-0160, 1998 Tenn. AG LEXIS 160 (8/24/98).