132 Tenn. 1 | Tenn. | 1914
delivered the opinion of the Court.
These cases were brought in the circuit court of Wilson county to recover damages of the Tennessee Central Railroad Company for the alleged wrongful death of William Morgan, the husband of Mrs. Artie Morgan and for injuries inflicted by the engine of the railroad company on Claude Morgan and Carl Morgan. The cases of the two latter were tried together; that of Mrs. Artie Morgan separately. A verdict was rendered in favor of' Claude Morgan for $3,000- and of
There was made in each of the cases in the trial court a motion for peremptory instructions by the railroad company, and there denied. The company assigned error in the court of civil appeals upon this action of the trial court, and that error was sustained, resulting in the dismissal of all of the cases by the court of civil appeals. All of the cases were then brought to this, court by the writ of certiorari, and here the Morgans assigned error on the action of the court of civil appeals in sustaining the motion for peremptory instructions. The action of that learned court in so dismissing the suits is the first matter for our consideration.
We are of the opinion that that learned court committed error in dismissing these suits.
Of course, it is true that, in passing on a motion for peremptory instructions, the court must take the most favorable view of the evidence appearing in the record supporting the rights asserted by the party against whom the motion is made. Moreover, as said in Tyrus v. Railroad, 114 Tenn., 579-594, 86 S. W., 1074, 1077:
*6 “There can he no constitutional exercise of the power to direct a verdict in any case in which there is a dispute as to any material evidence or any legal doubt as to the conclusion to be drawn from the whole evidence, upon the issues to he tried. . . . That is, if there is any dispute as to any material fact, the case must go to the jury; if there is no dispute as to such facts, the question is one of law for the court. If the case is one triable by the jury, the court below may set aside the verdict, on motion for a new trial, if he deem the preponderance of the evidence to he against it. If he refuse to grant a new trial, and the case is brought to this court, and the decision here turns upon the facts, the judgment of the lower court will be permitted to stand, if there is any evidence in the record to support the verdict. If there is no evidence in the record to support the verdict, this court will, upon proper assignment to that effect, reverse the judgment, and remand the cause for a new trial. In the latter-aspect of the matter, on motion properly made in the court below for a peremptory instruction, and an improper refusal of it by the-trial judge, this court would he enabled to dispose of the case finally, and thereby save to the parties and to the governmental agencies of the State the delay and expense of an additional trial, in the absence of any reversible error in rulings upon evidence or otherwise.”
It will be seen, from the recital of facts which we shall presently make, that there is a considerable dispute in the evidence as to material facts, and likewise
On the day the injury occurred, there was a picnic for the employees of the railroad company at Hamilton Springs, a few miles west of Lebanon. A special train, composed of an engine and several coaches, conveyed the picnickers to their destination. There being no siding sufficiently long to hold the cars, the train was, after the passengers left it, run down to Lebanon. There the cars were left, and the engine was propelled back to Horn Springs, a short distance from Hamilton Springs, and there run upon a siding. Late in the afternoon, when it was nearly time to convey the picnic crowd back to their homes, the engineer, fireman, and a flagman, by the name of Blakeley, mounted the engine, ran it out upon the main track, and started eastward toward Lebanon to couple onto the coaches. Just before they had left the siding at Horn Springs, a regular train, known as the “Shopper,” passed Horn Springs on its journey from Nashville to Lebanon and other points east of the latter city. When the engine got upon the main line at Horn Springs, the Shopper was just. leaving Hamilton Springs, about a half a mile away. The engine gained upon the Shopper, and was in sight of it when the latter passed the country road where the accident occurred, which was about a half a mile, or such matter, from Hamilton Springs.
We shall now pause for a moment to note the movements of the Morgans. The three of them, William,
We shall now return to the engine and the servants of the company who manned it. These were the engineer, the fireman, and the flagman Blakeley. The engine was running backward towards Lebanon. Blake-ley sat on the front end of the tender. The engineer was at his place, and the fireman at his. The flagman Blakeley says that he was looking steadily down the track in front; the engineer that he had his back to the boiler, with the lever and other appliances of the engine for controlling its movements, right at his hand, including the cord or rope to pull the whistle, and that he was looking steadily towards Blakeley, the flagman, on the front of the tender, to receive any signal he might make. The fireman did not testify in Mrs. Morgan’s case, but in the other cases he testified that, at the time of the accident, he too, was on the lookout. Blakeley says that, when the engine had gotten within about forty feet of the mouth of the public road, he saw the ears of Morgan’s horse, about forty
Then, again, there was ground for grave adverse inference on the part of the jury, based on the statement of Blakeley that he saw the horse’s ears when he was forty feet back in the cut, and that the horse got on the track before the engine could traverse the same distance, running at ten miles an hour, when the horse was going along slowly, as testified to by Claude Morgan. There was also ground for grave inference on the part of the jury from the fact that, if Blakeley had been properly watching, he could have seen the horse’s head when it got in the open space six or
It is to he noted in the Clande and Carl Morgan cases that the fireman testified, as we have already stated, that he saw the horse’s head in the open space referred to, and it was then the signal was given to pnt down brakes, and reverse the engine; bnt it must be remembered that there was also evidence in those cases that the fireman had stated, in the presence of witnesses at the trial, that if they (meaning himself and the other persons on the engine), had been attending to their business, and had not been looking back and waving, the accident would not have happened, and he was sorry.
Furthermore, we think it most probable that if the engineer had warned the Morgans by whistle, when the horse’s head appeared at the track, within striking distance, the accident would never have happened, because his driver, in all probability, would have hastily pulled him back, as he was a gentle horse, and easily managed.
In this connection it is proper to say that it is within the province of the jury to say whether the engineer did the right thing when the occasion arose. It may be if the engine had been running front foremost instead of. backwards, and the engineer had himself made choice of signals on seeing the obstruction, he would have blown the whistle, and thus saved the accident ; but, as it was, he was dependent on Blakeley, the flagman, sitting on the tender, to look out for him,
“The error complained of is to be found in the following language appearing in the first excerpt above quoted:
‘‘ ‘Or that he failed, when danger became imminent, to apply the brake and sound the gong or bell, or give other signal, and use every means in his power to stop the car and prevent an accident.’
“It is said that the rule thus laid down would impose upon the motorman the performance of duties*14 which were practically impossible of accomplishment; that by this rule he is required to sound his gong, give other signal, to apply his brake, and to use every means in his power to stop his car; and that this would make the motorman capable of reversing with one hand, of winding the brake with the other, and át the same time stamping his gong to warn the person who had thrust himself or fallen into danger. We have no statute declaring that the special acts referred to by the circuit judge, or any other special act, should be performed by the servants of the company. The question, then, is one at large, to be determined upon general considerations drawn from the nature of the particular business, and the habits and the customs of the people whom it serves. Street cars are designed to ply their business upon public streets— many of the streets densely crowded. People in vehicles and on foot must be constantly encountered, going in both directions, with the course of the car and in the opposite course, and most generally in the hurry of business. In other words, the car may at any time have to pursue its way through the throng of a city’s business. Under such circumstances, and even when the streets are not crowded, a mishap may at any moment occur, and may come in a manner which no man can accurately forecast in all its details. The person propelling the car should be left free to choose the best means of preventing the accident at the time, and as the situation is then presented to him. The means at hand for preventing the collision are the sounding of the*15 gong for the purpose of warning the person about to be collided with, in order that he may save himself, the putting on of brakes, and the application of the reverse lever. In some situations the sounding of the gong may be the means which the occasion requires as the best means for the prevention of the accident; in others it may be best to apply the brake; in others the reverse lever. Sometimes it may be reasonably within the power of the motorman to put in use two of these means, and sometimes perhaps, all of them; sometimes only one of them; and, under some circum-. stances, we may well assume, it would be best that he should attempt only one of the means provided, as being the most efficient, time lacking to use the others, or even to attempt their use: Subsequently, when his conduct is displayed in the evidence for examination before a court and jury, it is not for the judge to say that, under the circumstances surrounding and attending the accident detailed, he should have done this or that particular thing; but on the contrary, when all of the circumstances are shown, and it is made to appear what he did at the time for the prevention of the accident, it is .for the jury to say whether he did all that he could do (that is, all that a man of ordinary'intelligence and prudence and of reasonable alertness could have done under the special circumstances proven) to stop the car and prevent the accident. An instruction that the motorman should do some special thing is an invasion of the province of the jury by the circuit judge. ”
We may add that the facts already recited show there was reasonable ground for a difference of opinion as to what the real facts were, arising out of important conflicts in the testimony, and attacks made upon the credibility of one or more witnesses.
■ The learned court of civil appeals, after holding that the trial judge shold have given peremptory instructions, very properly passed upon other errors assigned in view of the possibility that this court might have a different view as to the propriety of directing a verdict.
The disposition of the matter of peremptory instructions disposes of the first, second, and third assignments made in the court of civil appeals. No question is made here as to the action of the court of civil appeals on the fourth, fifth, and sixth assignments made in that court.
The learned court of civil appeals sustained the seventh assignment made in that court. This assignment complained of the following instruction contained in the charge of the trial judge, viz.:
*17 “The situation of the premises as to obscuring the view of the party in the buggy or those on the locomotive, when not caused by the default of either, is not the basis for recovery, or basis for relief of liability, but such situation, and also the question of rate of speed and proximity of the locomotive to a foregoing train,. are all to be considered by you in helping you to determine just what occurred or what did not occur, and helping you to decide the determinative question, which is this: Were the statutory requirements complied -with, and, if not, was the failure to comply due to such sudden and immediate appearance upon the road that defendant’s agents and servants had not time to comply with them, as I have explained the matter to you?”
We see no objection to this instruction.
The learned court of civil appeals overruled the eighth assignment, and no question is here made of its action in that regard.
That court sustained the ninth assignment. That assignment complained of the following instruction given by the honorable trial judge :
“In order to help you determine whether and to what extent there was any such contributory negligence, I charge you that it is the duty of persons about to cross over railroad tracks to be mindful of the fact that trains do run and pass upon such tracks; and hence it is their duty, generally, to look and listen for an approaching or passing train, and, if necessary, in order that they may be in the use and employment*18 of ordinary care, to stop. Their duty is both, to look and listen to the extent of - freeing themselves from negligence, and, the less opportunity there is to do one of them, the greater the necessity to do the other. How far he is to go in exercising his faculties of looking and listening is a question for the jury to determine under all of the evidence relating to the situation and condition of the premises, as to obscuring of the view, proximity of the locomotive in question to a foregoing train, or loreceding train, and the other facts and circumstances in the case; the rule being this: One must take notice that trains move upon the track, and must exercise such reasonable care and caution, as a reasonably prudent man would employ or use under similar circumstances, to protect him from harm or injury.”
We see no objection to this instruction, and think the learned court of civil appeals was in error in its holding in respect thereto.
The court of civil appeals, after disposing of the assignment just mentioned, passed to assignments numbers 11- and 12, in the case of Mrs. Artie Morgan, These assignments were based upon the action of the trial judge in adding a certain qualification to each of two instructions offered by the railway company and charged by him to the jury. • The qualification in each instance was properly designed to prevent the jury from misunderstanding the charges offered to the extent of overlooking the duty of the railway company to sound the whistle, if under all the circumstances, as
After disposing of these matters, thé learned court of civil appeals addressed itself to an assignment which complained of the following language appearing in the charge of the trial judge in each of the cases:
“If a witness be shown to have sworn willfully, falsely, and corruptly in one material respect, you will reject his testimony altogether, except in so far as it is corroborated by other credible evidence.”
The court of civil appeals sustained this assignment, and we think they acted correctly in so doing. The word ‘ ‘ will ’ ’ was equivalent to ‘ ‘ shall ’’or“ must, ’ ’
For the error committed in giving the erroneous instruction just mentioned, all of the cases must he reversed and remanded for a new trial.
There is one more error, one occurring alone in the Claude and Carl Morgan eases which should be noticed, before we close this opinion. It is this:
The witness Christian was introduced by plaintiffs below, and testified in effect that the fireman was a young man of bad character when he lived in the witness’s neighborhood twelve or thirteen years before the trial occurred. Mr. Christian was confronted with the following letter:
“Wilford, Wilson County, Tennessee.
November 10, 1902.
‘£ To Whom it May Concern: I have known Robert Ward all of his life, and found him to be a hard working boy, and the best thing I can say is that he helped buy his widowed mother a home, and she now lives on it in a mile of me. I never knew anything wrong*22 with. him. I always considered him a peaceable and quiet boy.
Very respectfully,
S. P. CHRISTIAN, J. P.”
Mr. Christian admitted writing this letter, but the trial judge would not permit it to be read to the jury. The learned court of civil appeals rightly held that this was error. Certainly it was proper matter to be used in cross-examination of the witness Christian, since it tended very strongly to discredit the testimony then given by him as to the character and reputation of the fireman, Robert Ward, when he lived in Christian’s neighborhood.
As already indicated, for the errors above mentioned and sustained, the judgments must be reversed, and the causes remanded for a new trial. The plaintiffs below will pay the cost of the appeals in these cases.