Anderson v. Memphis St. Ry. Co.

• Decision Date: 17 January 1921
• Citation: 227 S.W. 39
• Parties: ANDERSON v. MEMPHIS ST. RY. CO.
• Court: Tennessee Supreme Court

227 S.W. 39

ANDERSON v. MEMPHIS ST. RY. CO.

Supreme Court of Tennessee.

January 17, 1921.

Certiorari to Court of Civil Appeals.

Suit by Z. E. Anderson, administrator, against the Memphis Street Railway Company. To review a judgment for plaintiff, defendant brought error to the Court of Civil Appeals, which reversed and remanded the case for new trial, and plaintiff petitions for certiorari. Judgment of the Court of Civil Appeals affirmed, and suit remanded for new trial, unless plaintiff dismisses in part.

Anderson & Crabtree, of Memphis, for plaintiff.

McKinney Barton, of Memphis, for defendant.

GREEN, J.

This litigation grows out of a collision between an automobile and a street car.

Mrs. Ada R. Anderson and her daughter, Eugenia Anderson, and her son by a former marriage, Harry York, 13 years of age, were riding in an automobile operated by Mrs. Anderson when the collision occurred. The machine was destroyed. Mrs. Anderson and Eugenia Anderson were injured, and Harry York was killed.

Suits were brought by Z. E. Anderson for damages to his car and for loss of services of his wife, Mrs. Ada R. Anderson; by Mrs. Ada R. Anderson to recover for her injuries; by Eugenia Anderson, through a next friend, to recover for her injuries; and by Z. E. Anderson, as administrator of Harry York, to recover damages for his death.

Verdicts were returned by the jury in favor of the plaintiffs in all four of the cases. The trial judge set aside the verdicts in the case of Z. E. Anderson and in the case of Mrs. Ada R. Anderson, on the ground that she had been guilty of proximate contributory negligence. He entered judgment in the case of Eugenia Anderson and in the case of Z. E. Anderson, administrator of Harry York. From the judgments in the two latter cases the street railway company appealed in error to the Court of Civil Appeals. That court affirmed the judgment in the case of Eugenia Anderson, and no complaint is made of its action in this respect. The judgment in the case of Z. E. Anderson, administrator of Harry York, was reversed by the Court of Civil Appeals, and the case remanded for a new trial. Z. E. Anderson, administrator, has filed a petition for certiorari to review this action of the Court of Civil Appeals.

The facts of the case are virtually conceded in this court. Mrs. Anderson, who was driving the automobile was guilty of contributory negligence. However, her children, Eugenia Anderson and Harry York, were not guilty of any negligence under the circumstances of the case, and it is not insisted that the negligence of their mother can be imputed to either. The street railway company was likewise guilty of negligence in the operation of its car.

There was a judgment for $8,000 in favor of Z. E. Anderson, administrator of Harry York. Mrs. Ada R. Anderson, the mother, and Eugenia Anderson, the sister, of the deceased, are the beneficiaries of this judgment. Thompson-Shannon's Code, §§ 4025-4029; Freeman v. Railroad, 107 Tenn. 340, 64 S. W. 1.

As to Mrs. Ada R. Anderson, we think under our authorities she cannot be allowed any benefit of recovery on account of an accident proximately resulting from her own negligence. Bamberger v. Citizens' Street Railway Co., 95 Tenn. 18, 31 S. W. 163, 28 L. R. A. 486, 49 Am. St. Rep. 909.

Eugenia Anderson, the other beneficiary, on the contrary, was not guilty of any negligence in the matter, and we are equally clear that her rights should not be prejudiced by her mother's fault.

This particular phase of the subject has not heretofore arisen in this jurisdiction, but it is well...