Burke v. Citizens' St. R. Co.

• Decision Date: 29 April 1899
• Citation: 52 S.W. 170,102 Tenn. 409
• Parties: BURKE v. CITIZENS' ST. R. CO. et al.
• Court: Tennessee Supreme Court

52 S.W. 170

102 Tenn. 409

BURKE v. CITIZENS' ST. R. CO. et al.

Supreme Court of Tennessee.

April 29, 1899

Error to circuit court, Shelby county; L. H. Estes, Judge.

Action by C. C. Burke against the Citizens' Street-Railroad Company and one Smith. From a judgment for defendants plaintiff brings error. Reversed.

Geo. B Cleveland, Jr., for plaintiff in error.

Turley & Wright, for defendants in error.

McFARLAND Special Judge.

There are a number of assignments of error filed by plaintiff Burke. But it is unnecessary to set these out in detail. It is sufficient to say that they cover the errors complained of which are decisive of the case. They are mainly directed against the charge of the court below. Among other charges the plaintiff complains of as error were these: The court, at the outset of his charge, and as a concise summary of the necessities of plaintiff's case, says: "That you may have the material points of the case fairly before you, so that you may apply the evidence properly to them, the court will now state to you what the material points of this case are: (1) Mr. Burke, the plaintiff, must establish to your satisfaction, by a preponderance of the evidence, that he was exercising the care and caution of an ordinarily careful and prudent man in the manner in which he was using the crossing at the corner of Main and Madison streets at the time of the accident." This first prerequisite as declared by the court to a recovery is, in effect, to throw at once the burden of proof upon the plaintiff to show that he was in the exercise of the care and caution of an ordinarily careful and prudent man, at the time of the accident, and deprives him at the very outset of the case, of the presumption that every man of sound mind will ordinarily avoid personal injuries. This very question upon whom the burden of proof of proper care or want of negligence was first cast, and when and how shifted upon plaintiff, was fully discussed in the opinion of this court (Judge Beard delivering the opinion) in the case of Stewart v. City of Nashville, 96 Tenn. 50, 33 S.W. 613, in which the trial judge said, among other things, that, in order to recover, the plaintiff "must show by a preponderance of the evidence that he was at the time of the accident in the exercise of ordinary care, and could not have avoided the accident by the exercise of care on his part." Says this court in commenting upon this charge: "In actions for personal injuries, and with regard to the question presented in this instruction, there is an irreconcilable conflict of opinion between the courts. An examination of the cases will show that the courts of Maine, Mississippi, Louisiana, Georgia, Massachusetts, North Carolina, Michigan, Illinois, Connecticut, Iowa, and Montana have adopted the rule that the burden is on the plaintiff to show affirmatively, as a part of his case, that no negligence or fault of his contributed proximately to the injury complained of, and, failing to show this, he cannot recover. Beach, Contrib. Neg. § 422; 4 Am. & Eng. Enc. Law, 93; Park v. O'Brien, 23 Conn. 339; Hinckley v. Railroad Co., 120 Mass. 257." These two cases last cited give the clearest and most concise reasoning supporting this contention. Upon the other hand, as is shown in the case of Stewart v. City of Nashville, supra, the courts of many other states hold that the...