108 Tenn. 646 | Tenn. | 1902
This is an action for damages for personal injuries. There was a trial before the Judge and a jury in the Court below, and a verdict for $2,000 for plaintiff. Defendant moved for a new trial, assigning, among other grounds, that the verdict was excessive. The trial Judge sustained the motion, stating in a written opinion that the case clearly showed partiality on the part of the’ jury, for which the Court must grant the new trial. To the action of the trial Judge, the plaintiff excepted, and tendered and had filed a wayside bill of exceptions.
There was a second trial, and upon this trial, after the plaintiff had introduced his evidence, the defendant demurred to it, which demurrer the Court declined to sustain. The case was thereupon, as stated in the bill of exceptions, submitted to the jury upon the question of damages. The jury returned a verdict for $750, and upon this verdict judgment was rendered for said amount. To this defendant excepted, and- tendered his bill of exceptions, and prayed and was granted and perfected his appeal.
While plaintiff excepted to the action of the Court in setting aside the first verdict, and tendered and filed his wayside bill of exceptions, we do not find that he ever prayed or was granted an appeal from the final judgment. It is true he filed an affidavit in forma pauperis after the final judgment, in which he’ recites that he is about to commence a litigation
Defendant assigns as error: First, that the Court erred in not sustaining the demurrer to the evidence; second, in its charge to the jury; and, third, in holding that there was evidence to support '.he verdict of the jury.
The only part of the charge specifically pointed out as objected to is as follows: “On the one hand, if you find from the evidence that any ordinarily prudent, careful man with the knowledge of the condition of the ladder which the evidence shows Mr. Ritt had of it, would have gone upon and used the ladder just as the evidence shows him to have used it, then he cannot be charged with negligence.”
The criticism of this part of the charge is that
We are of opinion that perhaps the language of the counsel is the better expression, but we think that of the trial Judge is equivalent to it, and there was no request to charge in the language of counsel.
Other general objections to the charge are not passed upon because not definite and specific. It is proper to say that under the aspect of the case presented by the record, this charge was improper, as it went to the liability of the defendant for any amount and the right of plaintiff to recover for any amount, and all of which was precluded, and settled, as a matter of law, by overruling the demurrer to the evidence, but the charge was not a matter of which defendant could complain after his demurrer had been overruled, the only question then open being the amount of damages. The charge was in fact favorable to him in opening up the question of its liability, which was already concluded against it by the action on the demurrer.
It is said that the Court should not have overruled the demurrer to the evidence. This depends upon whether the evidence as introduced, and all legitimate
Only two witnesses were examined — the plaintiff and a fellow-workman. It appears that the plaintiff was employed by the defendant to do painting. It furnished all the materials, such as paint, etc., and also the ladders and implements used in painting. Some days previous to the injury which was caused by the breaking of the step in a ladder, the plaintiff called the attention of the superintendent of the company to the defective and unsafe condition of several of the ladders being used, and among others, the one that caused the injury, and was told by the superintendent that they were all right and safe. Being called upon to do some work a few days after, he found the ladder in controversy at the place where the work was to be done, and says that it had been repaired and that it appeared to be safe. He went upon it, and, after being on one of the steps, about six feet from the floor, for some time painting, the step gave way where it had been repaired, and he fell to the floor, breaking his arm and sustaining-painful and permanent injury. Under this statement we are of opinion there was liability. It was the duty of the master to see that the tools and appliances furnished by it were safe and in proper condition. Railroad Co. v. Kenley, 8 Pickle, 207; Manufacturing Co. v. Morris, 21 Pickle, 660. It was also the duty of the master to have them repaired
There is no error in the judgment of the Court, and it is affirmed, with costs.