106 Tenn. 167 | Tenn. | 1900
W. L. Payne and wife, Sallie Payne, brought this action against the Nashville, Chattanooga & St. Louis Railway Company to recover damages for personal injuries alleged to have been wrongfully and negligently inflicted upon her while alighting from one of its passenger trains at Bridgeport, Alabama. Verdict and judgment being for the defendant, the plaintiffs , appealed in error.
The averment on which the recovery was sought is as follows:
“Plaintiff, Sallie Payne, wife of plaintiff, W. L. Payne, was a passenger upon one of defendant’s train of cars, having purchased a ticket from Decherd, a station on said defendant’s road, to South Pittsburg, another station on said defendant’s road, and .in order for plaintiff,, Sallie Payne, to
The defendant pleaded not guilty, and upon the issue so made the case was tried.
The only controversy of fact was in respect of the manner and cause of the injuries sued for.
The plaintiff introduced testimony tending to show that they resulted from the negligence imputed to the defendant in that part, of the declaration just quoted herein; and the trial Judge correctly instructed the jury that such facts, if established by a . preponderance of the evidence, would entitle the plaintiffs to a recovery.
The defendant introduced testimony tending to show that its agents, as the train neared Bridgeport, announced the name of the station, and that a change must there be made for South Pitts-burg, and that Mrs. Payne thereupon, before the train reached the station, walked from her seat
This instruction is the subject of the first assignment of error in this Court, the critipism being that the trial Judge thereby “takes the question of plaintiff’s contributory negligence from the consideration of the jury and declares a given statement of . facts to constitute negligence per se.'"
It is to be observed in the first place that the criticism misinterprets the instruction and ascribes to it functions that it does not perform.
The instruction does not in fact deal with the subjects of contributory negligence and negligence per se at all.
In the next place, the instruction is entirely sound when properly limited to its own supposi-tional statement of facts. There is no interpretation, of which those facts are susceptible, that
If the Court’s reference in this instruction to the suppositive acts of Mrs. Payne be taken as an implied declaration that she was thereby guilty of negligence per se, the erroneous invasion of the province of the jury so made would be entirely harmless,. since, without that declaration as with it, the defendant would inevitably have been protected against legal responsibility for her injuries by the utter lack of negligence on its • part under thé other facts submitted in the same instruction.
The other assignment of error complains of the action of the trial Judge in refusing the request of the plaintiffs, seasonably made, to instruct the jury as follows:
“If the jury find from the evidence that the plaintiff started to leave the train, while the same was in motion, or walked out on the platform or steps while the same was in motion, and that this was done by the express or implied invitation of the agents- or employees in charge of the train to get off, this would not be contributory negligence per se, such as .would defeat plaintiff’s right of recovery, but it becomes a question for the jury to determine, under all the circumstances, looking to the facts as to whether
. The refusal to give this instruction was proper, if for no other reason, because it presents a question not embraced in any issue raised by the pleadings, and also because not applicable to any theory developed by the testimony on behalf of either party.
The plaintiffs neither aver nor attempt to prove that the injuries sued for resulted from an “express or implied invitation” to get off the train while in motion; but, on the contrary, the theory of their declaration, and of their testimony, is that those injuries were caused by “a sudden and violent jerk” of the train after it had stopped, and while Mrs. Payne was on the steps attempting to alight.
The defendant’s theory is that Mrs. Payne was injured by jumping from the train while in motion, and without invitation. Though in conflict with each other, these theories are alike inconsistent with that submitted in the instruction refused.
The instruction might have been proper, under the rule announced in the case of Railroad v. Stacker, 86 Tenn., 343, if the plaintiffs had put
Let the judgment he affirmed.