111 Tenn. 329 | Tenn. | 1903
delivered the opinion of the Court.
The defendant in error sued to recover from plaintiff in error damages sustained by him from, its alleged negligence in so operating one of its cars as to frighten the horse which he was riding so as to cause it to throw and seriously injure him.
The record shows that he was coming into the city of Knoxville on Broad street, and that as he entered the street the car passed him, going north to its terminus. His horse indicated some degree of fright or. nervousness at the approach of the car, but at the moment of its passage a covered wagon intervened between it and the car, and he (defendant in error) had ño difficulty in
Upon this state of facts we think the verdict of the jury is sustained, and the circuit judge cannot be put in error for declining to grant to the defendant below a new trial..
While it is true that street railroads are not liable “for accidents arising from fright to horses caused by the usual operation of its cars if its employees are free from negligence, yet if one in charge of a car sees that a horse is frightened, and injury is imminent, it is his duty to refrain from sounding his gong or to stop the car. To continue to sound it under such circumstances would be such legal misconduct as would render the company liable for resulting injury.” Nellis Street Surface 'Railroads, p. 329. It is not to be understood
In his instructions to the jury the circuit judge clearly announced the rules of law affecting the rights and liabilities of the respective parties, and especially said to the jury that the plaintiff could not recover unless he, at the time of the injury, was in the exercise of due care. As an additional safeguard to the plaintiff in error, he granted a number of requests that were submitted by its counsel.
These requests.were as follows:
Second. “A man riding a horse along a street upon which a street car runs is presumed to be able to manage and control it, and the mere fact that the horse, when at such distance from the track as to avoid a collision, becomes frightened, places the company under no duty to him until it is evident that the rider has lost control of and cannot manage his horse.”
Third. “The motorman of a car is not, as a matter of law, hound to check or stop his car merely because the horse becomes frightened at the appearance and noise of the cars; and the company would not be liable for its failure to check or stop it unless the circumstances were such as to show to the motorman that an accident would be unavoidable unless he did check or stop his car.”
We think that, if there had been anything lacking in the original charge, it was supplied by these requests, and that in giving them the trial judge went to the extreme limit in laying down rules for the protection of the plaintiff in error. But it is insisted that he was in terror in declining to give the fourth and seventh of the
We think there was no error in declining to give this request. The effec.t of this request, if given, would have been to say to the jury that, though the horse was frightened, yet the traction company would be excused from liability if the motorman checked the speed of his car, and continued to run with only the usual and necessary noise, when under the law it was the part of due care and caution, when the. horse became frightened, if necessary to calm and save the rider, to entirely stop the car, without regard to the point which the car had reached at the time. The seventh request, which was declined, is as follows: “If you shall find from the evidence that Eon Mullins was riding a young and skittish horse, and that he met this car just at the end of the line, and his horse showed fright at the car, then I charge you it was his duty to turn off the street on which the car was running, and upon which' it had to pass "along upon its return to town, if there were cross-streets upon which he. might have turned, and avoided the car on its return j and, if he failed to do so, then it was negligence”
We think there was no error committed in the trial of this cause, and the judgment of the lower court is affirmed.