Bamberger v. Citizens' St. Ry. Co.

• Decision Date: 16 May 1895
• Parties: BAMBERGER v. CITIZENS' ST. R. CO.
• Court: Tennessee Supreme Court

31 S.W. 163

95 Tenn. 18

BAMBERGER v. CITIZENS' ST. R. CO.

Supreme Court of Tennessee.

May 16, 1895

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action by Louis Bamberger, administrator, against the Citizens' Street-Railroad Company, for damages in causing the death of his minor child. From a judgment for defendant, plaintiff appeals. Affirmed.

Edgington & Edgington and W. H. Carroll, for appellant.

Turley & Wright, for appellee.

WILKES J.

This is an action for personal injuries resulting in the death of Samuel Bamberger, a child about three years of age. The suit is brought by the father of the child, as administrator, for the benefit of the father, as next of kin of the deceased. It was tried before the judge and a jury in the court below and resulted in a verdict and judgment for the defendant company and the plaintiff has appealed, and assigned errors. On a former trial the same verdict and judgment were had, which on appeal, were set aside by this court ^[1] on account of errors in the charge of the trial judge.

The facts necessary to be stated are that the deceased was left by his father in charge of the grandmother of the child, at her place of business, and she left him temporarily in custody of her daughter, Miss Harriet Bamberger. Just prior to the accident, the child, with a companion some year or two older, were playing on the street in front of the place of business of the grandmother, in the presence of the aunt, who was standing in the doorway of the grandmother's store watching the playing of the children, who were running up and down the street. The deceased, running diagonally on the sidewalk, made a sudden break, and ran onto the street, either at, on, or near a bridge. The street car was going about eight miles an hour, down grade, approaching the bridge. The exact facts connected immediately with the accident are somewhat confused. Miss Bamberger says she was standing in the doorway of her mother's store, watching the child; that she saw Sammie, just at the bridge, run out into the street, and she ran out into the street; that when she got halfway between the car track and the house she heard a car coming, looked, hallooed to the motorman, and ran as fast as she could, and just as the car got on the bridge, as nearly as she could remember, the little boy ran across, in front of the car, and the car ran over him; that this occurred on the west side of the bridge, and that the boy was three years old. She says that the motorman paid no attention to her at all; she noticed no slacking of the speed; and that, by actual measurement, it was 105 feet from where the car struck the child to where it was taken out, in front of Mrs. Cole's premises. This, however, is controverted. The motorman discloses in his testimony that he first saw the child on the street, east of the bridge, and that the child ran some distance, diagonally, on the street, and, when his car was about 10 feet from him, suddenly cut across the track, in front of the car, and was killed. Mrs. Magnus says that the accident occurred when the child was about the middle of the bridge. The width of the street, between curb lines, is 46 feet; from house line to house line, is 66 feet.

The errors assigned are to the charge of the court.

The trial judge gave, among others, the following instructions to the jury: "Defendant railroad company pleads not guilty, and pleads that the negligence of the parent and the child contributed to produce the accident. This pleading puts upon the plaintiff the burden of making out his case, on every material point, to your satisfaction, by a preponderance of evidence. Now, as to the first material fact, you should be satisfied that neither Louis Bamberger nor his child, Sammie, were negligent to such a degree as to cause, or contribute to causing, the injury complained of. Second, you should be satisfied that the motorman running car No. 36 at the time of the accident was negligent, and that it was his negligence that caused the injury to Samuel Bamberger, deceased." This charge presents the question as to where the burden of proof rests in cases when the defense is contributory negligence; in other words, is the burden upon defendant to show contributory negligence on the part of the plaintiff, or upon the plaintiff to show the absence of such negligence? Upon the abstract question there is an irreconcilable difference of opinion. Mr. Beach, in his work on Contributory Negligence, attempts to lay down certain rules to determine this question. He says, when the circumstances of the case raise no presumption of either care or want of care on the part of the plaintiff, it is necessary for him to prove that he exercised ordinary care. When the circumstances raise a presumption that the plaintiff was in the exercise of ordinary care, then the burden is on defendant. When the circumstances raise a presumption that there was a want of ordinary care on the part of plaintiff, then the burden of proving freedom from contributory negligence is upon him. Section 417. In Shearman & Redfield on Negligence (section 106), it is said: "Practically all the courts agree that the fact of contributory negligence is fatal to the plaintiff's case, unless changed by statute, no matter how it appears,-whether by affirmative evidence on the part of the defendant, or by inference from the evidence on the part of the plaintiff. It is quite immaterial who proves the fact, so long as it is proved." We think we need not, in this case, pass upon the question as an abstract proposition. Taking the entire charge together, we think the court did instruct the jury that the plaintiff must make proof of want of contributory negligence. They were told, it is true, that, if the entire evidence did not preponderate in favor of the view that defendant's negligence caused the accident and injury, then the case must fail, but this did not change the previous instruction. Looking to the facts in this case, we find that the street car was legitimately upon its own track, running its usual, ordinary line, where it had a right to be, and the child, when the injury occurred, was upon the track, where it ought not to have been, and was, in consequence, killed. Under these circumstances, no matter what the rule may be, as an abstract proposition, it would be incumbent on the father to show that the presence of the child upon the track, or in a dangerous and exposed situation, was without negligence or want of proper care on his part, or the part of the child's custodian, if the negligence of either can be held to bar the right of recovery in this case; and upon that point the charge of the court was specific, that the father could not recover if there was such contributory negligence on his part, or the part of the custodian. In 4 Am. & Eng. Enc. Law, p. 93, it is said, "The burden of proving contributory negligence must, in every case, depend largely upon the facts of the particular case."

It is assigned as error that the trial judge asserted that certain concurring facts constituted negligence, and invaded the province of the jury, and, moreover, charged a greater degree of diligence on the part of the plaintiff and the child's custodian than the law requires. The portion of the charge objected to is this: "If you believe from the evidence that this child was in the custody of its aunt, and you further find that she allowed it to go onto the street in front of the Bamberger grocery, on the sidewalk on the south side of Poplar street, in front of which the street-car company was running and operating its cars regularly every ten or fifteen muntes, and you further find that she allowed the child to stray off, from under her control, to a point so far distant from her that, in the exercise of ordinary care and prudence, she could not have prevented the child from getting into a place of danger, and it did go into such place, and was run over and killed, then this would be such negligence on the part of the aunt as would defeat a recovery, unless you believe that the motorman had time to stop the car and prevent the accident after the child left the sidewalk and started towards the track." The substance of this charge is that if the custodian of the child permitted it to stray away from her control, so that, in the exercise of ordinary care and prudence, she could not have prevented it from going into a place of danger, when she might have reasonably apprehended it would do, then it would be negligence; and we do not think it subject to the exceptions made. It assumes nothing as facts, but presents a hypothetical case raised by the evidence, and applies the law in such case, but does not lead the jury to infer or believe such facts to be proven. Contributory negligence is generally a question of mixed law and fact, and in such cases it is the duty of the court to tell the jury what facts, if proved, will constitute contributory negligence. It is the duty of the jury, in such cases, to determine the facts, and apply the law, as laid down by the court, to such facts. 4 Am. & Eng. Enc. Law, 95; Thomp. Neg. p. 1235, § 10.

It is also objected that the court erred in the following charge "The state it differently, before you can find that the motorman who ran car No. 36 was negligent at the time of the accident and injury to Sammie Bamberger, you must find from the evidence the speed at which the car was running, and the point it was at on the track, when the child left the sidewalk, gave the motorman time to stop his car before he would arrive at the point where the child ran onto the track in front of the car. To illustrate, if the evidence satisfies you that when the child left the sidewalk the car was at a point, say, forty feet west of where the...