*1 juris-- defendant, Chancery acquired no therefore the Court being a diction Fox. "Wethink there is no doubt about his of Mrs. Lea), Barnes, (1 material defendant. Helm & Pickle v. Chancery ques- 388; (4 Ed.), 90, secs. 91. But this Gibson’s Suits tion becomes immaterial. case, dismissed, disposes
This and the suit will be but as Supreme pass upon the case carried to the Court will assignment sanity. as to his assignments sustained,
It that all the are results errors decree of the Chancellor is reversed and the suit is dismissed on the assignment first of error. cause, including appeal,
The costs of the the costs of the are decreed complainant, J. F. Pinkerton. Faw, J., Felts, J., P. concur.
ATCHLEY v. SIMS. 128 W. (2d), S. 975.
Easter Section. December 1938. by Supreme Court, April 1, Petition for Certiorari denied 1939. *3 Maryville, Drinnen, Connatser, Sevierville, T. of of and C. O. M. for in error. plaintiff Wynn, all of Se- Townsend, Robertson & Paine, B. A. and
A. M. error. vierville, for in defendant which
McAMIS, arose out of an automobile collision J. This action on the of Sevierville corporate the limits of Town occurred within injuries and 11, parties personal -September 1937. Both sustained damaged. both automobiles were County on Oc- in the Circuit Court of Sevier
Sims instituted suit Atchley negligently and 27, 1937, charging that defendant tober upon a main carelessly operated automobile from a side road his Highway attempted Number 35 thoroughfare State and known as giving any signal to stopping or make a left hand turn without to Highway ap- driving upon plaintiff his automobile warn who was charged left. It was further proaching defendant from defendant’s operating by that defendant his an amendment to the declaration was public the collision in violation of a ordi- at the time of automobile operation prohibiting the of auto- Town of Sevierville nance of the thirty per in excess of miles hour. speed at a rate of mobiles Atchley, by .guilty up plea set of not for defendant The case and a cross-action in his own behalf of.Sims declaration Atchley highway on approached that said which :Sims, to the effect is traveling Four; speed per Sims was at a ten miles that he about entering highway looked to left his before said and saw Sims dis- approximately away; three feet that he he tance hundred believed doing highway had time to cross said in fact had succeeded in and according by who, proof Atchley, so when Sims to the introduced traveling speed forty-five fifty in per was of from miles hour City ordinance, unlawfully oper- violation of said negligently highway ated his said automobile left side of in the di- going causing Atchley in rection which he it to collide was with highway. car near the curb on that side of the proof conflicting speed The is as to the two cars and their positions upon at the time of The trial the collision. Atchley’s negli- court submitted to the the issue of defendant gence Atchley action but after the defendant had entering stop upon Highway 35, upon testified that he did not before motion, Atchley its jury, own the absence of the stated that was in guilty contributory negligence doing as a matter of law in so Atchley that his permit- cross-action would stand dismissed. was not ted to further introduce to establish his cause of ac- $2,500 tion. in The returned a verdict favor of Sims for which approved by judge subject, however, was the trial to a remittitur of judgment accordingly $2,000. $500 entered for From this judgment Atchley appealed assigned has in error to this court and by errors support which insists that there is no evidence to he jury; preponderates against verdict of that the evidence the ver- dict; excessive; that the that dismissing verdict is the court erred in permitting him develop cross-action without his case proof; declining in special introduction the court erred two requests in his tendered behalf. for Sims have appeal
Counsel moved court to dismiss the be- appeal overruling cause it is an from action of the court judgment motion for a new trial and not from the itself. cases Ray, Tenn., 16, W., of Louisville & N. Railroad Co. v. 134 S. 858, Cas., 1912D, 910; Agricultural Ann. Cobble v. International Corp., App., 356; Briggs Bros., v. Clawson 3 Tenn. App., are relied of this motion. judgment overruling and the order of the court the mo *4 single incorporated entry tion for a trial are in a minute new conclud ing following: “To action with the which of the court the defendant appeal accepts prays an to the next term of the Appeals Court of Knoxville, Tennessee; appeal granted, Although which is etc.” the judgment separate preceding is in a paragraph itself contained language quoted, think exception preserved from we have the the prayed by may the appeal and the defendant be taken to relate to the judgment praying granting the preceding appeal of an as well overruling motion for a as to the order new trial. The action of not lim- is prayed is appeal an from which excepted to and the court and, trial for a new overruling the motion action in ited to court’s controlling. mo- are not reason, the cases cited for this we think is, accordingly, overruled. tion to strike the court Atchley moved have also for
Counsel of Sevierville Town of the Ordinance purported copy a Town must This motion per hour. thirty miles providing speed a limit of appear not to does referred paper that the sustained for the reason be by the trial identified trial.' It is in the court of to have been filed does the time allowed within judge but date and whether what affect not does striking of this document appear. However, the not parties reason that both appeal for result this thereon. their eases predicated an ordinance the existence of such an pleadings admitted unnecessary prove is It is what incom is not exceptions adversary reason, the bill of and, for this striking from paper this any by reason of respect in plete récord. in erred assignment that the court
We consider first the the introduction declining permit dismissing and in the cross-action that this action is insisted establishing the It cross-action. evidence by an inva jury and right of trial of the of the court was denial assign think this jury. We province of the trial proper sion of the must sustained. ment a non- to take compelling plaintiff practice In this State it, of a lack of evidence or dismiss his action because
suit Brackin, Scruggs recognized. v. having demanded, is not been Overt.), Parker, (2 2 Tenn. Yerg.), 528; Bacon, etc., v. (4 12 Tenn. Littlejohn al. 127, 134; et Sevier, Yerg.), 55; (7 Hunter v. Nashville, & Cold.), 284, v. C. (5 288; Hopkins Fowler, 45 Tenn. v. A., 354; W., 1029, 32 L. R. Railroad, Tenn., 409, 445, 34 S. L. St. W., 583. Tenn., 256, 41 S. Ferry Companies White, v. by Littlejohn v. right jury. of trial proceeding violates the Such Railroad, supra. L. Hopkins Nashville, v. C. & St. Fowler, supra; development of the permit a full proper practice is to at the a verdict plaintiff fails to make out a case to direct and if the by jury right of trial By practice the proof. this conclusion court, appeal, an de- appellate in event of preserved is and the directing in a verdict. court’s action propriety termine erroneous, that, if to the insistence We are to accede unable and that complained of was harmless action of the court here appellate that an court will affirmed under the rule ease should be Cross-plaintiff was embarrassed for harmless error. not reverse his developing his case and cross-action action of the court this ignored in the further introduction of evidence thereafter say the final result of the We are unable to charge of the court. trial not affected. *5 conflicting-
Moreover, already observed, the evidence was as we have being as dismissing the and if action in cross-action we treat the court’s cross-defendant, the equivalent to verdict in favor of a directed a trial before be reversed remanded for case would have to and to assignments jury upon conflicting The directed this evidence. accordingly this action are sustained. support the assignments there is no evidence to
The that against the preponderates that jury verdict the evidence assignment that the evidence verdict of are overruled. for the present a matter preponderates not verdict does seen, and, have there is consideration of this court as we finding Atehley guilty negligence. to of evidence a that joint trial However, for a since the will have to be remanded case- improper it is cross-action, both the and the deemed length of in unnecessary purpose for the to discuss the evidence at any the merits. dicating might respect with to view this court have assignment that erred re error is the court
The sixth of follows: fusing charge one, to number as request defendant’s being at a right has a automobile is driven “One to assume that an guilty an automobile is not speed; of hence driver of lawful rate path negligence into the of he turns at a street intersection of because permit, a approaching an car which saw at distance sufficient he legal- being at a crossing, approaching car was driven a safe if speed.” of rate gen- charge given have appears this been substance of charge assignment eral is overruled. and the charged being that an
The court automobile highway right way one com upon main over operated has arriving simultaneously at the intersection. The ing from side road designated by Highway 35 authorities as. proof shows that was not through signs notifying- the erection of a main traveled or entering crossing- stop to a full before or of vehicles come drivers apply reason not highway. For this Code Section did said request calling this to special the attention think second we charge. given in While think the driver jury should have been at the of a side road a vehicle with conditions intersection familiar statute, guilty thoroughfare might, irrespective of the be a main entering highway, stopping upon the negligence in not before present matter for negligent would such an act would whether all the facts and circumstances. jury to determine under assignment for the reasons indicated seventh To the extent and is sustained. of error in error. trial with taxed to defendant for a new costs
Remand
.173 Petition to On Rebear.
Counsel for J. petitioned Carroll Sims bave tbe for a re- court bearing upon ground tbe tbe that court overlooked tbe fact cross-plaintiff failed to making indicate bis intention of a left turn required by as Chapter 245, 2(c) Paragraph Acts of Sec.
was, therefore, guilty negligence per se. For this reason it is in- *6 sisted tbe peremptorily dismissing court’s action in tbe cross-action permitting without cross-plaintiff establishing to introduce bis cause action amounted to a harmless error for which this court should not reverse. pointed
As original opinion cross-plaintiff tbe testified out that when away be entered tbe 300 feet cross-defendant was and that making be bad succeeded in tbe turn when be was struck by cross-defendant on highway. tbe latter’s left side of tbe Under these facts it say give was for the' whether tbe failure to tbe signal proximately contributing was tbe or a sole of tbe cause collision cross-plaintiff develop was entitled to bis case and bave it sub mitted to tbe charge. under a correct adhere to our "We opinion that because of tbe dismissal bis action and for error tbe charge, tbe case must be remanded for a trial. new
In said, might addition to has been it what be observed that cross-defendent no peremptory motion for made instructions tbe conclusion of tbe compelling evidence and since a non-suit is unknown practice, nothing to our there is which this court act appeal, and, according practice, for that reason to established tbe case will to be remanded for a trial. bave new petition must, accordingly,
Tbe to rehear be denied. Cases). (Two RY. v. (2d), SOUTHERN CO. JACKSON S. W. 1094. April 8, Eastern Section. 1939. by Supreme
Petition for denied 1939. Certiorari Court June