124 Tenn. 16 | Tenn. | 1910
delivered the opinion of the Court.
■ These two actions were brought in the circuit court of Davidson county against plaintiffs in error for an injury caused to James L. Ray, a minor about twelve years of age, as the result of his jumping from a freight car, the property of plaintiffs in error. The first action was brought by the father, and the second in behalf of the boy himself by next friend.
In the first case there was a recovery of $1,000, and in- the second one of $2,500. The facts will be stated more at large when we reach the second branch of the case.
The first point presented is that the motion for new trial was not disposed of until the expiration of thirty days from the rendition of the judgments, and therefore that the matter was coram non judice, when the trial judge acted upon the motion. The verdict in each case was rendered on June 3, 1910, and judgment was rendered thereon on the same date. Motion for new trial was marked “Filed”'by the clerk of the trial court on the 29th day of June, 1910, called up by the court for hearing July 5, 1910, continued until the 6th, on which
Prior to the act of 1885 was Acts 1871, c. 59, which was as follows:
“In all cases in the inferior courts of this State, wherein an appeal to the supreme court may hereafter be prayed and granted upon the terms now imposed by law, and the party appealing is a resident of another county or State, or is unable, by reason of physical inability, to be present, the court granting said appeal, may, in its discretion, allow the appellant time in no case exceeding tRirty days, in which to give bond or file the pauper’s oath for the prosecution of said appeal, and such appeal bond approved by the clerk of the court from which the appeal is taken, or the pauper’s oath*24 filed with said clerk within the time allowed by the court, shall render said appeal as effectual as if done as now required by the law, during the term of court at which the judgment appealed from was rendered.”
Before the. act of 1871 the practice in chancery causes was for the chancellor to grant such length of time as he might see proper, even beyond the end of the term, for the execution of a bond for an appeal previously prayed (McPhartridge v. Gregg, 4 Cold., 324, 326; Andrews v. Page, 2 Heisk., 634, 638; Adamson v. Hurt, 3 Shan. Cas., 424; Davis v. Wilson, 85 Tenn., 383, 5 S. W., 285); but no such power was recognized as belonging to the circuit courts (James Ricks, ex parte, 7 Heisk., 364). To correct this practice, and to- make the rule uniform in both circuit and chancery courts, the act of 1871 was passed. That act, however, was construed by this court in Jackson v. McDonald, 2 Leg. Rep., 21, 2 Shannon’s Tenn Cases, 556, to mean that the grace given for execution of the bond should be computed from the day of the adjournment of the court, and not from the time at which it was granted. The resuit of this construction was that there were frequently great delays in the prosecution of appeals, and often they were not prosecuted at all after long indulgence had been granted under this construction, thereby delaying the enforcement of the judgment without any security to cover contingencies that might arise between the adjournment of the court and the time allowed; To meet this hardship, a great-hardship, where the terms
“Section 1. That hereafter when an appeal, or an appeal in the nature of a writ of error, is prayed from a judgment or decree of an inferior court to the supreme court, the appeal shall be prayed for and appeal bond shall be executed, or the pauper’s oath taken, within thirty days from the judgment or decree, if the court •hold so long; otherwise, before the adjournment of the court; but, for satisfactory reasons, shown by affidavit or otherwise, and upon application made within the thirty days, the court may extend the time to give bond or take the oath in term or after adjournment of the court; but in no case more than thirty days additional.
“Sec. 2. That in all cases where the appeal has not been prayed for within the time prescribed in the first section of this act, the judgment or decree may be executed.”
, This act covers all the ground previously covered by Acts 1871, chapter 59, and was intended to take its place, and the two were improperly amalgamated in section 4898 of Shannon’s Code.
■ We thus see the evil which was intended to be remedied by the act of 1885 and the previous act. There was no purpose on the part of the legislature to interfere with the practice upon the subject of motions for new trial. It was held by this court in the case of Railroad v. Johnson, 16 Lea, 387, that it could not be evaded on the theory that the judgment was within the breast of the judge during the term, and that he could set it
Plaintiffs in error assign as error the refusal of the trial judge to give a peremptory instruction in' their favor.
The uncontroverted facts are in substance as follows :
In March, 1909, the minor in question, James L. Ray, went upon the Woodland street bridge that spans the Cumberland river between Nashville and East Nashville, in company with a boy about his own age, one James Gallagher, for the purpose of viewing the waters of the river; the river then being at a high stage. While on the bridge their attention was attracted to the steamer Bob Dudley, which was unloading some 250 feet to the northward. They decided to get a nearer view of this process, so descended the bridge by steps leading down to the ground about seventy feet below, then went thr.ough the premises of the Standard Box Company till they reached a bluff which constitutes the end of.Main street, in East Nashville. They mounted this, and then descended by a steep path down to the vicinity of the Ryman elevator plant, which was situated about eighty feet from the river. Prom this they descended a
The place where the injury occurred was a wharf or landing used by the boats on the river for unloading freight from time to time which they had for the various factories in that neighborhood, of which there were a considerable number. There was a baseball ground about
This track was on a grade of 235 feet to the mile. In order to make the cars stand so that they could be loaded, it was necessary that the brakes should be set, and also that the wheels should be chocked or scotched. The cars were delivered on the spur track at ten minutes after 7 o’clock on the morning in question. The injury occurred late in the afternoon. When the cars were placed at the point indicated, they were secured by the setting of the brakes and by chocking on the east side. The west side could not be chocked, because the wheels
The area of land within which the wharf lay may he roughly described as bounded on the south by the Woodland street bridge, on the east by First street in East Nashville, on the north by the property of the Kirkpatrick Company’s mills, and on the west by the river. The Woodland street bridge was 250' feet distant. There was no approach to the wharf from this direction, except along the spur track of the railway, or across lots; the latter being the course pursued by the boys when they left the Woodland street bridge. To the north the country was open up to the Kirkpatrick Company’s mills. There does not appear to have been any wagon road down to the wharf. It was merely a landing where freight was loaded into cars standing on the spur track from boats on the river. Of course, people on foot could get to it from over the rough way pursued by the boys, or moré easily from the north and east.
It is insisted that the point is disputed whether the cars were properly secured by brakes and chocks; but what is said upon this subject in the evidence adverse to plaintiffs in error simply amounts to statements of witnesses that they did not see the chocks. A brakeman of the railway company testified that he put the brakes on, and another that he saw the brakes put on, and the latter that he himself put the chocks under the car. No one disputes this. The fact that others did not see it would amount to nothing; it not appearing that their attention was called to the matter.
The moving of the cars is accounted for by the witnessed for the plaintiffs in error by testimony to the effect that loading heavily tends to press the car down upon the springs, thereby lowering the body of the car, and loosening to some extent the brake shoe. It is supposed that something of this kind occurred. The second car was already loaded with lumber, and the first or upper car was about half loaded, when the cars began to move. They ran over only about fifteen feet, and were stopped by a bumper at the end of the spur track.
In the view that we take of the case, the disputed points are immaterial.
It may be conceded, as the jury found, that the boys did not interfere with the brakes, and that they were not ordered from the cars. However, as to this latter point there is no evidence to the effect that it was known by the plaintiffs in error, or any of its. agents, that the boys were on the cars, but only by the boat people engaged in unloading the boats.
The examination of James L. Eay shows that he is a very bright, alert, and intelligent boy; also well advanced in his school studies for a person of his age.
We are of the opinion that it does not. Aside from the fact that the cars were properly secured when the servants of the plaintiffs in error left them in the morning, .and they had no knowledge that boys were occasionally at the place where the cars were, and had been run away from there a time or two prior to the occasion in question by the agents of the boat companies while engaged in unloading, and aside from the fact that plaintiffs in error’s servants knew nothing of the presence of the boys at the time the defendant in error James L. Ray was hurt, and aside from the remoteness of the place where the cars were standing, we think the law referred to does not apply, because the boys were not attracted to the spot by the cars, but by the boat, which was in course of unloading, and only mounted the cars, after they reached the place, as a vantage ground for witnessing the process of unloading the boat. We .are also of the opinion that the attractive nuisance theory does not apply to cars standing upon a commercial railway, left to be loaded, in the ordinary course of the company’s business; certainly not when they are left in' charge of the shipper, who is engaged in the act of loading, and in whose care the car is for the time being. There are authorities which hold that it does not apply to such cars at all; that is, to standing railroad cars. Barney v. Hannibal & St. J. R. Co., 126 Mo., 372, 28 S. W., 1069, 26 L. R. A., 847; Chicago & A. R. Co. v. Mc
In the brief of counsel for plaintiffs in error onr attention is called to several cases from other States in which the whole doctrine expressed by the attractive nuisance theory is repudiated, and others in which it is confined to the specific case of turntables left unfastened and unguarded. In addition, we have examined numerous other cases. A full collection of the authorities, and a discussion of them, may be found in a note to Cahill v. E. N. & A. L. Stone & Co. (Cal.), 19 L. R. A. (N. S.), 1095-1165, and the cases reported therewith—Wilmot v. McPadden, 79 Conn., 367, 65 Atl., 157, 19 L. R. A. (N. S.), 1101; Swartwood v. Louisville & N. R. Co., 129 Ky., 247, 111 S. W., 305, 19 L. R. A. (N. S.), 1112, 130 Am. St. Rep., 465; Briscoe v. Henderson Lighting & P. Co., 148 N. C., 396, 62 S. E., 600, 19 L. R. A. (N. S.), 1116; Wheeling & L. E. R. Co. v. Harvey, 77 Ohio St., 235, 83 N. E., 66, 19 L. R. A. (N. S.), 1136, 122 Am. St. Rep., 503; Thompson v. Baltimore & Ohio R. Co., 218 Pa., 444, 67 Atl., 768, 19 L. R. A. (N. S.), 1162, 120 Am. St. Rep., 897. Other cases, since the publication of that volume, are found in Kelly v. Benas, 217 Mo., 1, 116 S. W., 557, 20 L. R. A. (N. S.), 903; Hermes v. Hatfield Coal Co., 134 Ky., 300, 120 S. W., 351, 23 L. R. A. (N. S.), 724; Brown v. Chesapeake & O. R. Co., 135 Ky., 798, 123 S. W., 298, 25 L. R. A. (N. S.), 717; Covington & C. R. T. & B. Co. v. Mulvey, 135 Ky., 223, 122 S. W., 129, 26 L. R. A. (N. S.), 204; Olson v. Gill
We do not deem it necessary for the purposes of the present case to enter upon a general discussion of the subject. We have in our own State six cases: Whirley v. Whiteman, 1 Head, 610 (1858); Bates v. Railway Co., 90 Tenn., 36, 15 S. W., 1069, 25 Am. St. Rep., 665 (1891); Cooper v. Overton, 102 Tenn., 211, 52 S. W., 183, 45 L. R. A., 591, 73 Am. St. Rep., 864 (1899); Railroad v. Cargille, 105 Tenn., 628, 59 S. W., 141 (1900); Burke v. Ellis, 105 Tenn., 702, 58 S. W., 855 (1900); Stone Co. v. Pugh, 115 Tenn., 688, 91 S. W., 199 (1905). In Whirley v. Whiteman the court was committed to the doctrine. In that case it appeared that a child hut little more than three years of age was injured by some exposed cogwheels, revolving within from ten to twenty inches from the ground, on the outside of a mill, within twenty feet of a public street in the city of Nashville, in an open space, wholly exposed, without any cover, guard, or inclosure whatever, and that children were accustomed to play about the mill every day. It was shown that the wheels might have been boxed at very trifling expense, or an inclosure made around them so as to secure them aginst possibility of injury to any one; also that on the day in question the mill was left running with no one to watch, direct, or guard the machinery, while all of the operatives went to their noon meal, and that during their absence the injury was inflicted. On the facts it was held that the owner of the mill was
On the grounds stated, we are of the opinion there is no error in the judgment of the court of civil appeals, granting the peremptory instruction and dismissing the actions, and the certiorari is therefore refused.