106 Tenn. 273 | Tenn. | 1901
This is an action for damages for personal injuries claimed to have been sustained’ by the plaintiff, a minor, on _ account of the defective and unsafe condition of one of the streets-of the city.
There was a. trial before the Court and a jury-in the Court below, and a verdict and judgment for the defendant, and the plaintiff has appealed! and assigned errors.
Two preliminary questions are raided againsir any consideration of the assignments. In the first;
In such case the. defendant must be treated as having waived the formal technical objection made and to have consented to a hearing of the motion on the merits.
It is said in the next place that the special requests made do not, from the record, appear to have been made after the regular charge was delivered. It is true there is no express statement to that effect, but these requests follow immediately after the general charge, and the action of the Court shows quite clearly that 'they were made after the general charge, as in several instances the memorandum of the trial Judge is in substance, “declined,- already charged in substance;” and again, “declined, charge -sufficient.'” This assignment we do not consider as -well made. The mere fact that the. requests followed the charge
“The plaintiff insists that Cherry street, at or about the point of the accident, was not kept open to its full width as located by maps and surveys, and that along its western side the cross-ties of a spur track of a steam railway projected over the line of the street, and that the ends of these ties were covered with, sand or dirt, thus creating an embankment, rendering, travel along the street unsafe.
“The Court instructs you that the city was not required by law to keep Cherry street open and reasonably safe for travel through its entire width as fixed by survey.” Several requests were made bearing upon this feature of the case, and the real matter of' contention is whether a city is obligated to keep its streets open and safe for their entire width or only so far as may be reasonably safe and sufficient for the usage of the public.
As a general statement of law we aré of opinion that thé city is obligated to keep its streets open and safe and in proper condition for > their' entire width, and any one injured upon any part of the street, by reason of its defective condition, is entitled to damages, provided, the party injured was without fault. State v. Barksdale, 5 Hum.,
But on the other hand if the street be der fective in some parts or portions, this would not warrant a person in negligently, heedlessly, or recklessly going upon the dangerous portions, especially when there was ample room which was safe, secure and accessible.
The whole of the charge of the Court must be considered together and with reference to the facts of the case, in order to determine whether it is correct or not. The Court charged the jury, in addition to what has been already stated, that, “if the space between the street railroad track, on the east, and the embankment on the west was of such width and in such condition as to be reasonably safe for persons ' exercising ordinary care, then the duty of the city was performed.” The Court continued, “.If by the exercise of ordinary care the plaintiff could with reasonable safety have driven along and through the space referred to, and through his own negligence and willingness drove upon the embankment already referred to, thus causing his wagon to be overturned, in such case you should find for the de
The facts, as they appear from the weight of evidence, are that plaintiff was driving an express or transfer wagon, hauling passengers from the race track to the city. It appears that he had been drinking some and had been racing along the road with other vehicles, and that he turned out of a safe track upon the street across the street car tracks, in order to reach the space. on the west side of the track, so that he might be enabled to distance and pass his competitors. lie was driving quite rapidly at the time, and his wheels were caught by the street, car track and
We think ' it appears that the plaintiff was driving not only negligently but rashly and recklessly at a high rate of speed, racing with other vehicles, and that his turning out of the safe track was in order that he might distance his competitors; that in consequence of this reckless driving and attempting to cross ■ the street car track, his wagon was deflected , and overturned, and that his recklessness and negligence was the cause of his own accident and injury.
It fully appears that he could, with the exercise of' reasonable care and caution, have driven along the west side of the street. While it is the duty, of the city, as we think, to keep its streets open and reasonably safe for their entire width, still, if there is a defect and danger in it, the city will not be liable for damages to one who heedlessly and recklessly runs into the danger, but only to those who inadvertently or ignorantly go into it, without fault on their part.
If a party intentionally and as a matter of choice or convenience leaves the usual and safe track, he cannot hold the city liable if he recklessly and needlessly goes into danger. • Taking the charge as a whole, while it is, as we think, erroneous in the particular feature stated, we do not, under the facts of the case, consider such
The judgment of the Court below must therefore be affirmed with costs.