98 Tenn. 577 | Tenn. | 1897
This is an action for personal injuries. It was tried before the Court and jury, and a verdict was rendered for §2,000. Upon suggestion of the Court, a remittitur of §1,000 was entered by plaintiff, and judgment was entered for §1,000, and the defendant appealed and assigned errors.
It appears that defendant, with her sister, Mrs. Yaccaro, and her brother-in-law, A. B. Yaccaro, were driving, one evening, along Kerr Avenue, in the city of Memphis. The two ladies were sitting on the back seat of the rockaway, while Mr. Yaccaro was seated in front and driving. Kerr Avenue runs east and west. Mr. Yaccaro lived on the south side of the avenue. When he came to a point opposite the gate leading into his premises, he stopped his vehi
While thus standing in the roadway of the street waiting for the gate to be opened, the defendant, who had been driving along the avenue for some distance in a buggy behind the rockaway, and going in the same direction, drove his buggy into the rear end of the rockaway, crushing the right hind wheel of the vehicle, overturning it, and throwing the occupants out. The plaintiff was a lady some seventy-four years of age, and, in the fall and crushing of the vehicle, she had her right arm broken above the elbow, so that the bones protruded through the flesh, and she was otherwise bruised and injured. There was space sufficient for the defendant to have passed the standing vehicle on the right-hand side, and the avenue was not crowded with vehicles. There was a small ditch, about five or six inches deep, on the right side, but it was not deep-enough to prevent an easy passage. Defendant, in his testimony, claimed that the vehicle in front stopped rather suddenly and unexpectedly at the gate, and that his horse plunged to the left, and that the accident was
Quite a number of errors are assigned. The first is, that the verdict of the jury is against the great weight and preponderance of the testimony. This assignment is not good. The question after verdict by a jury is not as to the weight or preponderance of the testimony, but is there any material reliable testimony to support the verdict? If so this Court will not disturb the finding of the jury. Besides, in this case there is material evidence to support the verdict. Kirkpatrick v. Jenkins, 12 Pickle, 85; Milton v. Stahlman, 12 Pickle, 111.
No question has been raised as to whether plaintiff is chargeable with the negligence of the driver of the vehicle, if he was guilty of negligence, nor whether she, as a mere passenger in the vehicle, can be said to be negligent in not conforming to the law of the road, and we therefore express no opinion upon this point.
It is next assigned as error that the Court said to the jury: ££In cases where persons are injured, we naturally have our sympathies aroused in behalf
It is again assigned as error that in considering the question of negligence under the charge the jury might look to the speed at which defendant was driving, the nearness of the horse and vehicle to the one plaintiff was in, and to the disposition of the animal he was driving. The objection is, that these propositions were put in the alternative, and that the matter of negligence was made to turn, to some extent, upon the defendant’s knowledge of his horse or acquaintance with his habits and disposition while being
The fourth assignment of error raises the question whether a vehicle, in front of another upon a public highway or street, may, under any circumstances, turn to the left, and occupy that portion of the street or road, and yet be free from negligence. Reference is made to sections of the Code
The Court said that when the movement of the vehicle in front indicated the intention of the driver to use another part of the road which he was not then using, the driver of the vehicle in the rear must govern his vehicle accordingly; that the driver should have his horse and vehicle under such usual, ordinary, and reasonable control as to be able to stop and prevent a collision. This was a correct and proper instruction. Avegno v. Hart, 13 Am. Rep., 135, note.
It is assigned as error that the Court charged the jury that if the plaintiff drove his buggy so close to the rockaway, in endeavoring to pass it, that it would have been considered a negligent manner , of driving by ordinarily prudent drivers, under the circumstances of this case, they might consider
In addition, we are of opinion that when the roadway to which the hindmost vehicle is by law entitled, is already occupied by another vehicle, and it is dangerous to pass by on the other side, it is the duty of the vehicle desiring to pass to stop and give warning to the one in front, so as to avoid any collision, before attempting to pass, and then not to attempt to pass unless he can do so safely. In this case it was not negligence for the foremost vehicle to go upon the left-hand side of the street, the occupants having no knowledge of the vehicle following them. Indeed, it was necessary to do so in order to enter the premises of the owner, and in such cases he is entitled to the use of the left side of the street in a reasonable way and for a reasonable time to enable him to enter the gate; and the defendant should not have passed so closely behind him or driven at such rapid rate as to make a collision probable. In this case the hindmost
A special request was made that the Court charge that if the plaintiff occupied the left-hand side of the street it was unlawful, and negligence would be presumed and plaintiff could not recover. This has already been virtually disposed of. The proof shows that plaintiff was upon the left side of the road for a lawful purpose, and no presumption of negligence can arise under the facts of the case.
Another special request was that all that was required of defendant, so far as his horse was concerned, was that he should be reasonably safe and gentle, and that it was not negligence to drive a horse which had on rare occasions previously shied. The trial Judge told the jury that it was not required of a driver to have a carriage or horse absolutely sound and free from defects, but only to exercise ordinary care in these respects, and if a horse had shied once or twice in a ndmber of years this might not indicate negligence at all. This, we think, is sufficient upon this point.
Mr. Vaccaro was asked whether a vehicle could pass between the middle of the avenue and the north fence. This was objected to as the expression of an opinion, and objection overruled. He had already stated that there was a space of twenty feet left open on the right side of the street, and the ques
It is assigned as error that the trial Judge could not require a remittitur of a part of the verdict, but should have set it aside m toto. It is conceded the practice of the Courts of Tennessee has been to allow remittiturs in the trial Courts as a condition of not granting a new trial, but it is insisted it is an incorrect practice, and contrary to the great weight of modern authorities. None, however, are cited in the brief. The trial Court held that none of the grounds for new trial were well taken, except the one that the verdict was excessive, and suggested that if $1,000, or one-half the amount, was remitted the Court would overrule the motion and enter judgment for $1,000. Defendants excepted to this ruling. Plaintiff elected to remit, and the motion for new trial was then overruled, to which defendant excepted.
The rule, as established in this State, is laid down in the leading case of Branch v. Bass, 5 Sneed, 366, as follows: “When, in an action of tort, the jury gives damages which the Court thinks excessive, the Court has the discretion to set aside the verdict, and award a new trial; or it may suggest to the plaintiff, as an alternative thereof, to release the damages to an amount which, in the judgment of the Court, would be reasonable and just, and, upon such release being made, the Court may render a judgment for the balance. Such action on the part
In Massadillo v. Railroad Co., 5 Pick., 661, it was held that a remittitur under protest of the plaintiff «would not be received by the trial Court, and would be rejected, if entered, in the consideration of the motion for new trial in this Court, the proper practice in such case being to grant new trial.
In the case of Railroad Co. v. Wallace, 7 Pick., 35, it was held that interest upon damages was not proper, but if the amount found is excessive this Court would not reverse the judgment if the plaintiff would remit the interest. This -was, however, a case peculiar in its facts. The defendant cannot be required to abide the judgment and forego an appeal. Railroad v. Garrett, 8 Lea, 150; Railroad v. Foster, 10 Lea, 366.
We see no valid objection to the rule as laid down and followed in this State, and in almost all the States of the Union, of suggesting a remittitur as a condition of not granting a new trial, and while it cannot be made peremptory upon the plaintiff, but must remain optional, still, when it is
The judgment is affirmed, with costs.