Brown v. Chattanooga Electric Ry. Co.

• Decision Date: 26 September 1898
• Citation: 47 S.W. 415
• Parties: BROWN v. CHATTANOOGA ELECTRIC RY. CO.
• Court: Tennessee Supreme Court

47 S.W. 415

BROWN v. CHATTANOOGA ELECTRIC RY. CO.

Supreme Court of Tennessee.

September 26, 1898.

Appeal from circuit court, Hamilton county; Floyd Estell, Judge.

Action by Emma Brown against the Chattanooga Electric Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Case & Case, for appellant. Brown & Spurlock, for appellee.

WILKES, J.

This is an action for personal injuries resulting in the death of plaintiff's husband, Andrew Brown. Defendant introduced no evidence, but demurred to that of plaintiff, which was sustained by the trial judge, and the suit dismissed, and the plaintiff has appealed, and assigned errors.

The defendant, as one of his pleas, stated that the matter of damages arising out of this accident was compromised and settled with the deceased in his lifetime. There was a replication to this plea, among other things to the effect that this settlement was before the husband died, and before the plaintiff's right of action accrued, and was no bar to it. The court, on motion, struck out this part of the replication, and this is assigned as error. There was no testimony on this feature of the case, and, under the shape it has assumed, it is not material to be considered. It may be said, however, that it was not error to strike out the replication, since, if there had been a settlement and adjustment made by the deceased in his lifetime of his claim for damages, it would bar any subsequent action by the widow. Of course, the good faith and binding effect of such settlement could be put in issue, as was done; but that also becomes immaterial under the demurrer, which raises and relies solely upon the theory that there was no cause of action to any one arising out of the accident.

The facts, as disclosed by plaintiff's proof, are that her husband was an illiterate negro, — an ordinary laborer, — but there is no proof that he was weak-minded or imbecile. He was employed with another to dig and uncover an escape pipe at or near the defendant's power house, in an alley between the power house and a frame house on the east of it. This alley was some 10 feet wide. The ditch started in at a depth of 3 or 4 feet at the north end, and deepened to 7 feet or more at the edge of Seventh street. Beneath the surface the dirt to be excavated was loose for some distance, and then there was clay, and it was thrown out as excavated on the east side of the ditch next to the power building. There was a ledge of about 3 feet on which the dirt was banked up. There were no stays across or along the ditch, and no protection from its falling in or caving in. It did fall in on Andrew Brown while he was excavating at a place where it was about 6 feet deep, and crushed him so that he died. An expert engineer, Fritzwater, had charge of the work, and Brown was working under his directions and obeying his orders. After the accident defendant took precautions to avoid further caving. The pipes were rusted.

It is insisted...