Barr v. Southern Ry. Co.

• Decision Date: 27 October 1900
• Citation: 58 S.W. 849
• Parties: BARR v. SOUTHERN RY. CO.
• Court: Tennessee Supreme Court

58 S.W. 849

BARR v. SOUTHERN RY. CO.

Supreme Court of Tennessee.

October 27, 1900.

Appeal from circuit court, McMinn county; James G. Parks, Judge.

Action by Addie Barr against the Southern Railway Company. From a judgment in favor of the defendant, plaintiff appeals. Affirmed.

Gaston & Madison and V. C. Allen, for appellant. Burkett & Mansfield, for appellee.

CALDWELL, J.

Action of damages for personal injuries. Demurrer to evidence sustained, and suit dismissed, and appeal in error by plaintiff.

1. The defendant's motion to affirm because no motion for new trial was made below is overruled. A motion for a new trial is not a prerequisite to an appeal in error, when the case is tried by the court without the intervention of the jury, as was done in this instance. Lancaster v. Fisher, 94 Tenn. 222, 28 S. W. 1094.

2. The motion to affirm because there is no bill of exceptions is likewise overruled. Every demurrer to the evidence must incorporate the evidence (Hopkins v. Railroad Co., 96 Tenn. 410, 34 S. W. 1029, 32 L. R. A. 354; Summers v. Railroad Co., 96 Tenn. 459, 35 S. W. 210; Artenberry v. Railway Co., 103 Tenn. 266, 52 S. W. 878); and, when filed, the demurrer in full becomes a part of the record, without more. Hence a bill of exceptions is not necessary to a review of such a demurrer in this court. Mitchell v. Railway Co., 100 Tenn. 329, 45 S. W. 337, 40 L. R. A. 426.

3. The plaintiff's assignment of error upon the action of the trial judge in sustaining the defendant's demurrer to the evidence is not well founded. The evidence does not disclose any legal responsibility on the part of the defendant for the injuries sued for. The substance of the evidence, with proper legal deductions and inferences therefrom, is that the plaintiff, when going from her work at the woolen mills at Sweetwater to her dinner, found one of the defendant's freight trains standing on the track across the street on which she was rightfully accustomed to travel; that, rather than take the risk of being so delayed as to be tardy in returning to her afternoon task, she attempted, without permission or notice, to cross the obstructing train after her companion, and, while passing over one of its flat cars, was, by its sudden and unexpected movement, frightened, and caused to jump to the ground in the direction in which she was going, thereby breaking one of her legs, and sustaining the injuries for which she sues; that the defendant, in so obstructing the street for...