| Tenn. | Oct 27, 1900
Action of damages for personal injuries; demurrer to evidence sustained and suit dismissed, and appeal in error by plaintiff.
1. Tbe defendant’s motion to affirm because no motion for new trial was made below, is overruled. A motion for a new trial is not a prerequisite to an appeal in error, when the case is tried by tbe Court without- the intervention of a jury, as was done in this instance. Lancaster v. Fisher, 94 Tenn., 222" court="Tenn." date_filed="1895-01-05" href="https://app.midpage.ai/document/lancaster-v-fisher-8298780?utm_source=webapp" opinion_id="8298780">94 Tenn., 222.
2. The motion to affirm because there is no bill of exceptions is likewise overruled. Every demurrer to the evidence must incorporate the evidence (Hopkins v. Railroad, 96 Tenn., 410; Sum
3. The plaintiff’s assignment of error upon the action of the trial Judge in sustaining the defendant’s demurrer to the evidence is not well founded. The evidence does not disclose any legal responsibility on the part of the defendant for the injuries sued for. The substance of the evidence, with proper legal deductions and inferences therefrom, is that the plaintiff, when going’ from her work at the woolen mills at Sweetwater to her dinner, found one of the defendant’s freight trains standing on the track across the street on which she was rightfully accustomed to travel; that, rather than take the risk . of being so delayed as to be tardy in returning to her afternoon task, she attempted, without permission or notice, to cross the obstructing train after, her companion, and, while passing over one of its flat cars' was, by its sudden and unexpected movement, frightened and caused to jump to the ground in the direction in which she was going, thereby breaking one of her legs and sustaining the injuries for which she sues; that the defendant, in so obstructing the street for the period of 'fifteen minutes violated an ordinance of the
Thus a deplorable misfortune is undoubtedly revealed, but it is the product of the concurring negligence of the plaintiff and > the defendant. The defendant’s negligence in obstructing the plaintiff’s rightful passage upon the public highway did not justify her negligence in attempting to pass over the train. They were both in fault, and tlie fault of one concurred directly and proximately with that of the other in producing the injury. It is not a case of proximate negligence on the part of the defendant and remote negligence on the part of the plaintiff, in which the latter’s fault goes merely in mitigation of damages; but it is a case of proximate negligence on the part of both, in which the latter’s fault absolutely bars her action. Saunders v. City and Suburban Railroad Co., 99 Tenn., 135, and citations.
Affirmed.