Brenizer v. Nashville, C. & St. L. Ry.

• Decision Date: 20 February 1928
• Citation: 8 S.W.2d 1099,156 Tenn. 479
• Parties: BRENIZER v. NASHVILLE, C. & ST. L. RY.
• Court: Tennessee Supreme Court

8 S.W.2d 1099

156 Tenn. 479

BRENIZER v. NASHVILLE, C. & ST. L. RY.

Supreme Court of Tennessee.

February 20, 1928

Certiorari to Court of Appeals, on appeal from Circuit Court, Hamilton County; Oscar Yarnell, Judge.

On petition for rehearing. Petition dismissed.

For former opinion, see 3 S.W.2d 1053.

P. H Thach, of Chattanooga, for plaintiff.

Brown & Spurlock, of Chattanooga, and Fitzgerald Hall, of Nashville for defendant.

CHAMBLISS J.

The Court of Appeals, having found that there was material evidence for plaintiff, but, in effect, that the great weight of the evidence was with the defendant, nevertheless affirmed the action of the trial court is sustaining a motion for a directed verdict, on the ground that the federal rule of practice applied in a case brought under the Federal Employers' Act (45 USCA §§ 51-59; Comp. St. §§ 8657-8665). This court, for reasons stated in our original opinion (3 S.W.2d 1053), held that the state rule of practice governs in all trials in our state courts, reversed the judgment, and remanded the case.

By petition to rehear it is submitted that this court should have passed upon other reasons suggested in the Court of Appeals, and on argument in this court for sustaining the motion for a directed verdict, among them that plaintiff was cut off by assumption of risk and his own negligence, and it is insisted that this court should affirm, if the result was correct, despite error in the reasons given by the lower court.

13. No petition was filed in this court for defendant railway company, and the sole question raised by the petition for certiorari of plaintiff was the action of the Court of Appeals above set forth. This had the effect of limiting this court to the consideration of that question. This court does not review a case before it on writ of certiorari as if here on broad appeal. Neither the act of 1925 (chapter 100, § 14) nor the practice generally on writs of certiorari so contemplates. See Tri-State Fair v. Rowton, 140 Tenn. 304, 306, 204 S.W. 761, L. R. A. 1918F, 657; Cincinnati, etc., R. Co. v. Brock, 132 Tenn. 477 178 S.W. 1115; Lillard v. Tolliver, 154 Tenn. 304 285 S.W. 576; Brown v. Brown, 155 Tenn. 530, 296 S.W. 356; and other cases cited in the opinion in the last-styled case (155 Tenn. 537, 296 S.W. at page 360). In view of this rule of practice, and since the case was being sent back for a new trial, this court purposely pretermitted...