108 Tenn. 324 | Tenn. | 1902
The plaintiff below recovered a verdict and judgment against the defendant companies for the sum of $3,000.00 damages for personal injuries. Both companies appealed and have assigned errors. The gravamen of the action is, that the plaintiff, while driving a delivery wagon drawn by two horses, was injured in consequence of the negligence of defendants, their
Four or five witnesses prove that the motorman, prior to the accident, did not ring the bell or sound the gong; that the car was running at the time at a rate of speed which the witnesses variously estimate, from twenty to thirty miles an hour, in violation of the city ordinance, which prohibits a rate of speed exceeding six miles an hour. The speed and momentum of the car is further shown by the fact that the wagon with which it collided, weighing 3,000 or 4,000 pounds, was thrown from the center of the street into the gutter, and the car ran a hundred feet be-fpre stopping. There is also evidence tending to show that the motorman, as the car approached Church Street, could have seen the horses and wagon at a distance of 100 feet, but made no effort to check the car or put it under control. The insistence, however, of counsel for the company under this assignment of error is, that the injuries sustained by plaintiff resulted from his own negligence as the proximate cause. The specification is that, although plaintiff was aware that he was approaching the street car track, he neither looked nor listened, but drove upon the track heedlessly and recklessly. It is insisted that this fact appears from the plaintiff’s own testi
Plaintiff states that his horses were then in a jog trot, and he proceeded to cross the street car track, angling to the right. When he discovered the car approaching, at a distance of only 100 feet, he immediately pulled his horses to the right and did all in his power to get out of the way. While the plaintiff does state that he looked up Front Street while still on Church Street, and before going upon the street car track, the cross-examination weakened his testimony on that point, and left the impression that he was not testifying from positive recollection that he looked, but from his general habit to do so. However, the plaintiff, in his re-direct examination, repeats with more or less positiveness that he did look before going upon the track. The objections now urged go to the credibility of the witness, and the weight to be given his testimony, all of which were matters for the determination of the jury.
The second assignment of error is based upon the idea that the Court, in his instruction to the jury, proceeded upon the assumption that the effect of plaintiff’s testimony was, that as he ap
The third assignment of error is, that the Court erred in refusing the following supplemental instruction asked by counsel for defendant companies, namely: “It was the duty of plaintiff to look and listen for the approach of the car before attempting to pass over the track, and if you believe, from the evidence, that be failed
The objection to the charge and the refusal to charge, as requested, we quote at length from the brief, since it presents very clearly and pointedly the alleged error, as follows: “The Judge, in his charge to the jury, after defining the amount of care and caution incumbent upon plaintiff to avoid the accident, told the jury that if they found that this action and conduct of the plaintiff, describing it, was the proximate and controlling cause of the accident, the cause without which the accident would not have occurred, then, in that event, the jury, should find for the defendant. It will be observed in this instruction of the Judge> that plaintiff was to be defeated in his action, provided only that the jury found that his negligence was the proximate and controlling cause of the accident, the cause without which the accident would not have occurred. The Court then adds: 'Again, if you should find that the plaintiff’s negligence and want of care and precaution contributed to the accident, but was not the proximate ' and controlling cause of the same, this
“In both of these requests this idea is incorporated, their language being “that the negligence of the plaintiff that either was the direct and proximate cause of the accident, or directly contributed to it, as the proximate cause, your verdict should be for the defendant.”
“It will be observed that the Court does correctly state to the jury that if the plaintiff’s negligence and want of care and precaution remotely contributed to the accident, but was not its proximate and controlling cause, that plaintiff would not be defeated of his recovery, but that this fact could be looked to only in mitigation
We are constrained to hold that the objection thus urged to the charge is well founded, and the Court was in error in refusing the supplemental request, to the effect that if the plaintiff’s negligence contributed proximately to the accident, this fact would defeat the right of recovery. In other words, the Court, in his general charge, only covered the proposition of remote contributory negligence, which is to be considered in mitigation of damages, but wholly ignored the doctrine of proximate contributory negligence, which defeats the action. In Whirley v. Whiteman, 1 Head, 611, it was held that, “if a party by his own gross negligence brings an injury upon himself, or contributed to such injury, he cannot recover ; for if by ordinary care and prudence he might have avoided it, he must -be regarded as the author of his misfortune, etc. It is likewise
Again, Railroad v. Pugh, 13 Pickle, 627, it was stated, viz.: “The rule at common law, and in this State still is, that any contribution to an injury which, directly produced it, would bar the action in any case where statutory provisions to the contrary do not apply, etc.” Proximate contributory negligence is further explained in the following language: “If the injury was caused by the plaintiffs conduct, or was the immediate result of the plaintiffs conduct, to which the wrong of the defendant did or did not contribute as an immediate cause, the plaintiff cannot recover, but must bear the result of his own negligence or conduct.” See, also, Dush v. Fitzhugh, 2 Lea, 307. In Railway Co. v. Hull, 4 Pickle, 35, the Court said, viz.: “The jury were no where told that the negligence of the plaintiff, which might and ought to be considered in mitigation of damages, should be such as contributed remotely, and not directly, to the injury, and that if the negligence of the plaintiffs contributed
The fourth assignment of error is based upon a supplemental request refused by the court, to the effect that if the plaintiff by the exercise of reasonable care and diligence might have seen the car approaching in time to have avoided the accident, he could not recover, but we think this instruction was necessarily embraced in the general charge, to the effect that if the plaintiff failed to look and listen before attempting to cross the street car track, this fact would defeat his right of recovery, for this was equivalent to instructing the jury that if the plaintiff, by the exercise of ordinary care and diligence could have seen the car approaching, and failed to exercise that degree of care, he would not be entitled to recover.
The sixth assignment is that the Court erred in refusing to charge as follows:
“The street car company had the preferred right of way over and along the track for the passage of its cars, because such cars are necessarily -confined to the tracks laid for them, and cannot run elsewhere.” This instruction was properly refused, because in contravention of the rule laid down by this Court in Citizens’ Rapid Transit Co. v.*337 Seigrist, 12 Pickle, 120, in which, it was held that a street car has no superior rights over vehicles at grade crossings or at street intersections. As stated in Street Railway Co. v. Howard, 18 Pickle, 474, the rule is that at crossings a street railway company has in the operation of its cars no preferential right of way over vehicles and pedestrians.
The seventh assignment of error is that the Court erred in refusing to charge the following request, namely: “If you find from the evidence that while the agents and servants in charge of the car were exercising ordinary care and precaution, the plaintiff drove upon the track in front of the moving car when the car was close to it; that the motorman, by the exercise of reasonable care and diligence, could not stop the car in time to prevent the collision, the defendants would not be liable, and your verdict should be in their favor.” This request embodied the theory of the defendants, namely, that plaintiff’s wagon appeared upon the track so suddenly, and in such close proximity to the car, that it was impossible to stop the car in time to prevent the accident. There was evidence tending to support this theory. The motorman testified that as he approached Church Street he sounded his gong, and when about two-thirds of the way across Church Street, on Front, he saw plaintiff coming-in a rapid trot across the track; that he at
Another witness testified that be made an examination of the street car after the accident, at the shed,. and found that the headlight box bad a hole punched in the side and the reflector bad a dent in it. The glass in the headlight was also broken out. The bole in the headlight box
It is argued that it was impossible for the headlight to have been mashed and dented in the manner described without an external collision with an object from the side and in front of the car. The theory of defendant was that as the bead of the lead or left-hand horse was projected on the front platform from the side, that the tongue of the wagon inflicted the injury to the headlight.
The supplemental request presented the theory of the defendant, and was supported by the testimony just mentioned. The Court, in bis general charge, except in stating the contention of the respective parties, did not touch upon this theory. The defendant was entitled to have the jury instructed upon the law applicable to its theory of the case, and the refusal of the Court to do so is a reversible error.
For the errors indicated, the judgment is reversed and the cause remanded.