Chattanooga Electric Ry. Co. v. Cooper

• Decision Date: 23 October 1902
• Parties: CHATTANOOGA ELECTRIC RY. CO. v. COOPER.
• Court: Tennessee Supreme Court

70 S.W. 72

CHATTANOOGA ELECTRIC RY. CO. v. COOPER.

Supreme Court of Tennessee.

October 23, 1902.

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

Action by John L. Cooper, as administrator, etc., against the Chattanooga Electric Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Brown & Spurlock, for appellant. Head & Anderson, for appellee.

BEARD, C. J.

The evidence in this case tended to prove that the intestate of the defendant in error, a very old man, in crossing one of the streets of Chattanooga, over which the plaintiff in error operated its cars by electric power, suddenly found himself in a position of apparent peril from a rapidly approaching automobile, and in attempting to escape, in a moment of alarm and excitement, inadvertently ran upon one of the tracks of the plaintiff in error, and was killed by one of its passing cars. This car was moving in a direction opposite to that of the automobile, and the evidence also tended to show that the motorman, instead of watching his car and the track in front, so as to avoid accident, had his eyes on the automobile, and was looking down the side of the car at the automobile as it passed down the street; and that, but for this, the death of Mr. Cooper would not have occurred. In this state of the evidence it was insisted by the railway company that the deceased could have pursued another direction, whereby he would have escaped the peril that apparently threatened him, and at the same time have avoided contact with its car; and that, failing to do so, his own negligence, proximately contributing to his death, would bar a recovery, even though the motorman was also guilty of negligence. This view was pressed on the trial judge, and he was requested, but declined, to give it in charge to the jury. On the contrary, he said to the jury: "It is true, as insisted by counsel for the plaintiff in this case, that if a man is in a place of danger, and he is excited by the danger to such an extent that he cannot act with sound judgment and discretion, — in other words, if the automobile was upon him (the deceased), and he was excited by the situation, and did the wrong thing under the circumstances, — the law would not hold him accountable, would not charge him with contributory negligence." This is assigned for error by the railway company, the defendant below, and the plaintiff in error in this court. It is said in the brief and argument submitted by its counsel that this rule would properly have been applied if the plaintiff in error had placed the deceased in the position of danger with the result...