110 Tenn. 467 | Tenn. | 1903
delivered the opinion of the Court.
This is an action for damages for personal injuries. It was tried before a jury in the court below, and there was a verdict for $5,000. On motion for a new trial, $2,000 of this amount was remitted, and judgment was rendered for $3,000 and costs, and the street car company has appealed and assigned errors.
The substance of the complaint is that plaintiff was negligently carried beyond her destination on her trip out from the city to her home, and was afterwards carried on to the terminus of the road, and brought back,
It is said tbe court erred in admitting, oyer tbe objection of tbe company, evidence of wbat was said and done by tbe conductor and plaintiff on tbe trip- out and tbe return.
Plaintiff’s contention is that sbe was carried negligently beyond ber destination in going out, and that tbe conductor would not return with ber to ber destination; that be treated ber rudely on tbe trip out and back, and negligently and wantonly on tbe return trip carried ber beyond ber stopping place. Tbe case in this court must be viewed from tbe plaintiff’s standpoint, and on ber theory, and wbat was said and done on tbe trip out and back is not only competent, but constitutes tbe very gist of tbe action.
It is said tbe court erred in tbe following istruction to tbe jury: “Tbe court further instructs you that a person who enters a street car to be transported to a certain place, and pays bis fare, is a passenger, and that there is a corresponding obligation on tbe part of tbe passenger to act with prudence, and to use tbe means provided for bis safe transportation with tbe same reasonable circumspection and care that is required on tbe part of tbe carrier, for tbe law does not prescribe a different rule or measure of care with respect of parties, and, if bis negligent act solely contributes to bringing about tbe injury of which be complains, be cannot recover.”
We may assume, therefore, that the trial judge meant, if the negligent act of the plaintiff produced or was the sole cause of the injury, she could not recover.
There are two or more answers to this assignment, assuming that it was meant to charge the doctrine of concurrent negligence.
One is that there was no request for any other or additional charge. Another is that the company insisted throughout the trial that there was and could be no contributory negligence or concurrent negligence, under the proof, but that the facts presented a case of sole negligence on the part of plaintiff, or sole negligence on the part of defendant, according to whether the jury adopted plaintiff’s or defendant’s theory of the facts. Counsellor the road stated that, if plaintiff’s theory was true, then the road was guilty of negligence, to which, in the language of counsel, “we don’t claim her negligence contributed.” The jury evidently adopted the theory of plaintiff.
The case of Nashville Street Railway Co. v. Norman,
The court in the present case, in his charge, did present the feature of contributory negligence, saying to the jury: “But if the passenger is injured by his or her own negligence or want of care, and without any negligence or want of care on the part of the carrier, then the carrier is not liable, and there can be no recovery.” This was meager, but.there was no request for additional charge.
It is said that the court erred in charging as follows: “You are also instructed that it is the duty of those in charge of the car, when signaled to stop at a regular stopping place to discharge passengers or to take on others, to await a sufficient length of time to allow the passengers — whether those giving the signal to stop, or those who are undertaking or attempting to alight — a sufficient length of time to alight in safety, by the exercise of reasonable diligence, and to see and know that no passenger is in the act of alighting when the car is again put in motion. And it is likewise their duty to give greater care and consideration to aged or infirm persons, whose age or infirmity are apparent from their appearance, than to other persons, and, if necessary, to assist them in getting off the car; and, if they fail to
One objection to this is that it requires the •conductor absolutely to know and see that no passenger is in the act of alighting when the car is put in motion, and thus makes the company virtually an insurer that the conductor shall see the passenger if alighting.
This doctrine is laid down in Booth on Street Railroads, sec. 349, in these words: “It is the ■duty of those in charge of the car, when signaled to stop for the purpose of discharging passengers, to ascertain who and how many of the passengers intend to alight at that place, to wait a sufficient length of time to allow them to alight in safety by the exercise of reasonable diligence, and, in ;any event, to see and know that no passenger is in the ■act of alighting, or otherwise in a position which would be rendered perilous by the motion of the car when it is :again put in motion.” Booth on Street Railroads, sec. 349.
Again, in Highland Co. v. Burt, 92 Ala., 29, 9 South., 410, 13 L. R. A., 95, it is said: “It is the duty of the driver to wait a sufficient length of time to enable passengers to alight in safety by the exercise of reasonable diligence, and, in any event, to see and know that no passenger is in the act of alighting, or otherwise in a position which would be rendered perilous by a movement of the car.”
In Railroad Co. v. Mitchell, 98 Tenn., 31, 40
“As applied to a woman aged seventy-six years, and weighing two hundred pounds, the following instruction, taken as a whole, is not erroneous, to-wit: ‘It was the duty of the defendant company to use all reasonable care and diligence for her safety while on and getting off of the train, and to give a reasonable time on arriving at the depot (her destination) to alight from the train in safety; and it was the duty of the company, or. some agent or employee of defendant in charge of the train, to see that sufficient time was given for that purpose, and, if necessary, to assist her in making her exit.”
In Nellis on Street Surface R. R.’s, page 479, notes, it is said: “The conductor must be alert to see that no one is alighting or attempting to alight before he starts his car.” Citing Gilbert v. Street Railway, 160 Mass., 403, 63 N. E., 60; Losee v. Street Railway, 63 Hun, 405, 18 N. Y. Supp., 297.
While we think that the language of the trial
As to the duty of the conductor to look after the safety and care of aged and infirm persons, and, if necessary, assist them in alighting, the instruction given in this case does not go beyond the rule of duty laid down in Railroad Co. v. Mitchell, 98 Tenn., 31, 40 S. W., 72.
This does not mean that it is the duty of the conductor to assist passengers generally to alight.
The sixth assignment complains of the fact that the trial judge gave plaintiff’s theory of the case to the jury. We find that it was immediately followed by a statement of defendant’s theory, and both are stated with substantially and virtually exact correctness.
We do not find in the learned judge’s statement any fact stated hypothetically which was not brought out by
It is said that the trial judge should have given no charge uponthe subject of exemplary damages; that the-case presented is not one for punitive damages, and hence the verdict and judgment are excessive, and so-much so as to evince passion, prejudice, or caprice,, caused by the charge upon the subject of exemplary damages.
In considering this assignment, we must, of course, take plaintiff’s version of the matter, as the jury evidently credited her, and gave the weight of their verdict in her favor, and there is no assignment that there is no evidence to support the verdict. If the-case is one which calls for exemplary damages, then the court should have charged the jury upon that feature..
In American Lead Pencil Company v. Davis, 108 Tenn., 254, 66 S. W., 1129, this court approves the language-of Sutherland on Damages, when he says that punitive-damages are allowed when a wrongful act is done with a bad motive, or so recklessly as to imply a disregard' of social obligations, or when there is negligence so-gross as to amount to misconduct and recklessness. Continuing, the court says: “The authorities affirm that what amounts to gross negligence under the facts-of the case, or to a disregard of the safety of the person injured, is a discretionary ground for exemplary damages.”
This court has also said, in The Traction Co. v.
In Telegraph Co. v. Shaw, 102 Tenn., 318, 52 S. W., 163, it is said: “There need not be positive proof of malice or oppression, if tbe transactions, or facts shown in connection therewith, fairly imply its existence, and it is left to tbe jury to look at all tbe circumstances in order to see whether there was anything in tbe conduct of the defendant to aggravate tbe damages.”
Tested by these rules, we advert to tbe facts of tbe case as given by plaintiff and her witnesses: Plaintiff was a German lady seventy-three years of age. She entered a car in tbe city to' go to her home, in tbe suburbs. She desired to get off at Orleans street, and so told tbe conductor at tbe next crossing before reaching Orleans.
It seems tbe conductor and another, one not on duty, and a young man friend, were on tbe rear of tbe car, talking. He, being engaged in conversation, did not give tbe signal to stop at Orleans, and plaintiff hallooed at him, but be ran on to Richland avenue; and plaintiff declined to get off there, and demanded to be carried back, but
We think these facts are sufficient not only to call for a charge upon the feature of punitive damages, but also to justify the jury in giving them, and, in view of these facts and the injury sustained, there is no error in the amount; and the judgment is affirmed, with costs.