108 Tenn. 428 | Tenn. | 1902
Plaintiff below recovered a verdict and judgment before the Hon. J. A. Cartwright, Special Judge, and a jury, against the turnpike company, for the sum of $2,500 damages for personal injuries. The company appealed and bas assigned errors.
The first assignment we will notice is that the Court erred in not sustaining defendant’s motion in arrest of judgment. The substance of the motion was that the declaration sets out no facts showing negligence on the part of defendant, and
It has been held that after judgment on demurrer, there can be no motion in arrest of judgment for any exception that might have been taken on arguing the demurrer. Indiana R. R. Co. v. Lampson, 31 Ill. App., 513; Tidd’s Practice, 918. But it has also been held that a motion in arrest for a fatally defective complaint may properly be sustained, even though a demurrer to such a complaint had been previously overruled. It is said that the Court, by ruling wrongly on a demurrer, does not preclude itself from afterward ruling rightly upon a motion in arrest of judgment. Stewart v. Terre Haute R. R. Co., 103 Ind., 44; Newman v. Perrill, 73 Ind., 154; Field v. Slaughter, 1 Bibb (Ky.), 160; Griffin v. Baker Co. Justices, 17 Ga., 96.
It will be observed that the grounds now assigned in arrest of judgment are wholly different from the causes assigned on the demurrer, but
The declaration in this cause contains three counts. It is only necessary to notice the second count, which is probably fuller and more explicit as a pleading than the other counts. It is alleged in this count that defendant, turnpike company, is a corporation duly chartered and organized under the laws of the State of Tennessee, and as such owns and operates a - turnpike- from Nashville to Ashland City, in. Cheatham County. That for the purpose of collecting its tolls, it has at proper intervals along said turnpike constructed or erected gates or poles, which may be raised or lowered to allow travelers, who have paid their tolla ge, to pass thereunder; that it was the duty of defendant to provide safe and suitable gates or poles for such purpose, with due regard to the safety of those who might pass thereunder, and to maintain same in proper repair, but that defendant failed, negligently, willfully, and wrongfully, to do this, and plaintiff alleges that by reason thereof, on or about the ISth of July, 1897, and while she was lawfully
It was assigned on the motion in arrest that the declaration fails to specify any fact or facts upon which a charge of negligence can be based, or in what way defendant’s gates were improperly or negligently constructed, maintained, or operated, or which one = of its poles fell on plaintiff. As already seen, the declaration alleges that the toll gate in question was about eight miles from the city of Nashville, and this, we think, was sufficiently specific to inform the company what toll gate was meant. Again, it was not necessary for the plaintiff to point out the particular defects in the toll gate that caused it to fall, or to show wherein the company’s • servant was negligent in its management. It was sufficient to allege that the pole was permitted to fall on plaintiff’s head as she was in the act of passing thereunder. The very fact that the pole fell was prima facie evidence of negligence. Res ipsa loquitur. A presumption of negligence would at
In the case now being decided, we are of opinion a stronger rule applies than that laid down in Young v. Bransford. It is not only competent for tbe jury to infer negligence as a proposition of fact from the proof that tbe pole
The next assignment is that there is no evidence to support the verdict. The defendant company owns and operates a turnpike between Nashville and Ashland City, in Cheatham County. The accident to plaintiff happened at the company’s first toll-gate, about eight miles from the city of Nashville. The toll-gate keeper at that time was an old man about eighty-three years of age. The toll-gate consisted of a pole about twenty-eight feet in length, six inches in diameter at one end, and two and one-half inches at the other end. The larger end was set in a fork on the side of the pike, and twenty-two feet of the pole extended across the pike to the toll-gate house, where it was secured by a goose-neck in the end of a post. The remaining six. feet of the pole extending back of the fork had attached an iron cylinder or cog-wheel, weighing, as variously estimated, from twenty-five to thirty-five pounds. This weight and six feet of the pole back of the fork being heavier than the twenty-two feet extending across the pike, raised the pole 'when
It appears that on duly 18, 1891, plaintiff started to Nashville with one A. J. Howington, with whom she lived as housekeeper. Howington was. driving and sitting on the right side of the buggy next to the toll-gate house. The plaintiff, Mrs. Tates, was seated on the left side of Howington, nearest the fork of the pole. As they approached, the toll-gate keeper let the pole up rapidly, and, just as they were passing under, the pole fell, striking Mrs. Tates on the head and breast. An .examination made soon after showed that the nails used to hold the iron weight had become pressed back, and that the iron weight had slipped over them and fallen to the ground, thus causing the pole to fall and inflicting the injuries. There was proof tending to show that the toll-gate keeper and the officers of the company did not inspect the weight at any time after it was put on; that in 1896, during Christmas, the pole and weight were carried off by
It appears to have been the duty of Murphy, the toll-gate keeper, and Moore, Superintendent of that particular section of the pike, to look after the pole.
Moore testified that he put the weight on in 1894, and would notice it as he passed on his way to town in his buggy, but did not examine it. Mr. Lewis, the General Superintendent of the road, stated that he would glance at the pole as he passed along the pike, but made no examination of it.
The theory of the company was that, as the plaintiff and Howington approached the toll-gate, both of them noticed that the pole was down horizontally across the road, and they saw Murphy standing there ready to let it up; that no effort was made to stop the horse, which was driven in a trot right up to the pole, when Murphy, seeing who they were, and that a collision was about to occur, undertook to let the pole up rapidly. The large end of the pole struck the ground with force and the weight fell off. Plaintiff not having stopped or tried to procure a stop, was drawn instantly under the pole, which, being freed of the weight, fell and struck her. It is insisted on behalf of defendant that it
There was no proof on the trial below tending to show that Mrs. Tates, the plaintiff, was guilty of any negligence. As already stated, she was not driving, but had accepted a seat in the buggy, at the invitation of Mr. Howington, to accompany him to the city to visit his sick daughter. It was insisted below that plaintiff and Howington did not stop or attempt to stop the horse when they reached the toll-gate, and the gate-keeper was compelled to let up the gate rapidly and violently to prevent a collision of the horse with the pole. It was insisted that if plaintiff and her driver caused the action of the gate-keeper by their imprudence and recklessness, she cannot complain; that if she and the driver saw the impending danger, and rushed' into it, she must take the consequences. But, if there was any negligence shown, it was that of Howington, the driver, and his negligence cannot be imputed to the plaintiff, Mrs. Tates.
“The true principle seems to be that when a person is injured -by the negligence of the defendant, and the contributory negligence of one with whom the injured person is riding as a guest or companion, such negligence is not imputable to the injured person; while, on the other hand, it may be imputable when the injured person is in a position to exercise authority or control over the driver.” A. & E. Ency. Law, Vol. 7, p. 448.
In the case of Union Pacific R. R. Co. v. Lapsley. 51 Fed. Rep., 174, this question was considered. That was a suit by an administrator for the wrongful killing of his intestate. The deceased was riding home with her brother in an open wagon, with the brother driving; she had been invited to ride by the brother. Says San-born, Cir. J: “So that the case sharply presents the question whether one who, while riding gratuitously in a carriage owned and driven by another, is injured by the concurrent negligence of a third person and the driver, over whom he has no control, is barred from recovering compensation for the injury from the former by the contributory negligence of the owner and driver of the team. With the single exception of the Supreme Court of the State of Wisconsin, which had been committed to the doctrine of Thorogood
It is also assigned as error that the verdict is excessive. But we find nothing in this verdict indicating that the jury were swayed by prejudice, partiality, caprice, or corruption. Two verdicts in favor of the plaintiff have already been set aside upon the facts, and we are now precluded by the statute against interference with this verdict.
The charge of the Court is a . correct presentation of the issues, and contains no reversible error. Affirmed.