83 Tenn. 409 | Tenn. | 1885
delivered the opinion of the court.
Action of Dobson against the Iron Company to-recover damages for personal injury while in the employment of the compány. The verdict and judgment were in favor of Dobson, and the company appealed in error. The Referees recommend a reversal' of the judgment. Both parties have excepted to the report so as to open the whole case.
There have been four trials before a jury in the court below, resulting in each instance in a verdict for the plaintiff, and this is the third appeal in error to this court. The first verdict was set aside by the trial court, the record not showing for what cause. Upon the defendant’s appeal from the judgment rendered on the second trial, there was a reversal by this court for error of law in the charge of the trial judge. The opinion then delivered is ieported in 7 Lea, 367. Upon the second appeal, the judgment below was reversed upon the express
The main controversy in this case . was whether the plaintiff below was, at the time of the injury complained of, an employe of the company or of one Al. Williams, a contractor under the company. Williams bad control, under a verbal contract with the company, of several' machines for making nails, which were run by power, .and with materials furnished by the company. The plaintiff below, then a minor, was engaged at one of these machines, handling and turning, by means of a pair of steel nippers, the sheet of iron from which the nails were clipped by the knives of the machine. While thus employed, the knife burst to pieces, and one of the eyes of the plaintiff was struck by an iron splinter and destroyed. Al. Williams was introduced as a witness by the Iron Company, and was asked, upon his examination in chief, whether he had an interview with the plaintiff’s father after the accident, and if so, what was said. The witness answered, in substance, that Redid have such an interview on the evening of the accident, and had showed plaintiff’s father the condition of the knives and machines, and the father-
The defendant introduced as a witness its president, and upon cross examination the plaintiff, without objection, interrogated him ‘about two conversations he had with the plaintiff’s father shortly after the •accident. When the plaintiff recalled his father in rebuttal, be asked him to state what conversation he had with the president of the company a few days after the accident. This was, says the record, “objected to by defendant, objection overruled by the court, and exception taken by defendant’s counsel.” The witness answered, stating the facts substantially as they had been detailed by the president himself. The conversations related to the payment of the plain
The charge of the trial judge to the jury, as it is embodied in the bill of exceptions, contains this clause: “Defendant insists that if the jury shall find from the proof that plaintiff was an employe of the defendant at the time of the injury, still the defendant is not liable, because.the injury was occasioned by the negligence and careless act of a co-employe and fellow-servant of plaintiff. I have already instructed you as to the duties of employers in selecting and employing co-employes and fellow-servants, but I again instruct you, under this position assumed by defendant, that if plaintiff received an injury proximately caused by the negligent acts or conduct of employes in the same department of work, and the defendant, as the master, used ordinary care and diligence in selecting such fellow-servants, and did not know he Aras reckless and careless, and thereafter kept him in such employment Avithout such knowledge, the plaintiff cannot - recover in this action for such injury.” The defendant’s counsel does not object to this part of the charge, but he does object to a clause
It is nest insisted that the circuit court erred in refusing to grant a new trial upon the defendant’s motion, the evidence being insufficient to support the verdict. By the Code, sec. 3122, it is provided that: “Not more than -two new trials shall be granted to the same party in. an action at law, or upon the trial by jury of an issue of fact in equity.” This court has uniformly held that the statute was intended to limit the power of the courts over the findings of fact by the jury upon regular proceedings and a correct charge. If the court in the same case has set aside, upon the motion of the same party, the verdicts of two juries, upon the ground that the evi-dencé is not sufficient to sustain them, the power of the court is at an end to grant another new trial
But it is insisted that the statute does not apply to this court. The language of the statute is general and prohibitory. And if it had in terms been directed to the trial courts, this court, upon appeals in error, only corrects the errors of the trial court, and renders the judgment which that court should have rendered. We cannot reverse a judgment upon the ground that the court below should have granted a new trial upon the facts, when, as we have repeatedly held, it would have been error in that court to have granted the new trial. The statute thus necessarily includes the appellate court.
Affirm the judgment.