Chattanooga Station Co. v. Harper

• Decision Date: 25 October 1917
• Citation: 199 S.W. 394,138 Tenn. 562
• Parties: CHATTANOOGA STATION CO. v. HARPER.
• Court: Tennessee Supreme Court

199 S.W. 394

138 Tenn. 562

CHATTANOOGA STATION CO. v. HARPER.

Supreme Court of Tennessee.

October 25, 1917

Certiorari to Court of Civil Appeals.

Action by A. L. Harper against the Chattanooga Station Company. A judgment for plaintiff was reversed and remanded in part by the Court of Civil Appeals, and both parties bring certiorari. Judgments of the trial court and Court of Civil Appeals reversed, and suit dismissed.

NEIL C.J.

This was an action brought in the circuit court of Hamilton county to recover damages for injuries inflicted on the defendant in error by the engine of the plaintiff in error. There was a verdict of $10,000 in favor of the defendant in error, and judgment thereon. After the plaintiff in error's motion for a new trial had been overruled, it appealed to the Court of Civil Appeals. There the judgment was reversed and the cause remanded for a new trial. That court, however, fixed the liability of the plaintiff in error and restricted the remand only to the amount of damages. The case was then brought to this court by the writ of certiorari by both the plaintiff in error and the defendant in error; the latter insisting there should have been an affirmance, the former that there should have been a complete reversal, and either a dismissal of the case or an unlimited new trial.

The declaration, as originally drawn, consisted of only one count. This averred, omitting the formal parts, that, on the ______ day of November, 1913, near East End avenue, in the city of Chattanooga, "defendant" (plaintiff in error) "unlawfully, wrongfully, and negligently ran one of its engines into and against and over plaintiff" (defendant in error), "whereby, and on account of which the plaintiff was bruised and mangled," etc., describing the nature of his injuries, and averring great pain of body and mind.

Subsequently by leave of the court, this count was amended so as to specify other special damages, among them the following:

"Plaintiff suffered so much from his amputated arm that the doctors gave him morphine and other drugs in an effort to lessen the pain. As a result of such treatment plaintiff has become addicted to the drug habit and is now using a large quantity of morphine each day."

A second count was added which, after repeating the language of the first count, continued:

"Said collision occurred within the corporate limits of the city of Chattanooga, a municipal corporation organized under the laws of Tennessee. At the time there was in force an ordinance of said city of Chattanooga providing that 'any engineer or other person in charge of an engine with or without cars attached who shall run the same through any part of the city at a greater rate of speed than six miles an hour shall, on conviction, be fined not less than $10.00, nor more than $50.00; provided that from the south of Montgomery avenue and from and southeast of King street, trains and cars may move and be run at a rate of speed not exceeding thirteen miles per hour.' The point where plaintiff was struck, as aforesaid, is southeast of King street in said city, and within the district where trains and cars may lawfully move at the rate of speed not in excess of 13 miles per hour. Plaintiff avers that the said engine, at the time it struck him, was running at a high and reckless rate of speed, to wit, more than 13 miles per hour, and in violation of the said ordinance of the city of Chattanooga aforesaid. The plaintiff avers that the unlawful speed of such engine, in violation of said city ordinance, was the proximate cause of said collision, and his resulting injury."

The plaintiff in error interposed a demurrer to so much of the declaration as charged addiction to the morphine habit, on the ground that this habit was not the proximate result of the injury, as appeared from the declaration, but resulted wholly, or in part, from a separate, intervening cause for which the plaintiff in error was not responsible. This intervening cause, as indicated in the argument at the bar was the independent will of the defendant in error. In the view we take of this case it will not be found essential to a correct disposition of the main controversy to decide the merits of this question. Therefore we shall not again refer to it.

That part of the declaration which alleged the violation of the ordinance was demurred to on the ground that the ordinance was directed only against an engineer, or other person in charge of an engine, and made it a misdemeanor for such persons to propel the engine at a greater speed than that mentioned therein; that it had no application to any other person or persons--that is, that it was not directed in terms against plaintiff in error or any railroad company. Another ground of demurrer was that the ordinance applied alone to public streets and other public places, and not to railroad yards, and it was not alleged that the accident happened in any of the places to which the ordinance applied.

Both grounds of demurrer were overruled. We shall presently consider these matters in connection with other questions which arose on the trial.

The evidence, so far as necessary to be stated, was, in substance, as follows:

The plaintiff in error is a terminal company located in Chattanooga, and employed by several of the railroads centering at that point in performing the kind of services such a company is chartered for. The particular service out of which the present controversy arose had its origin in the fact that the Nashville, Chattanooga & St. Louis Railway Company had been accustomed for a long time to transport from Nashville, Tenn., to Chattanooga, a sleeping car, known as the "Jersey sleeper." This car was bound for Jersey City, in the state of New Jersey. It was left at the Union Depot in Chattanooga each night by the train of the Nashville, Chattanooga & St. Louis Railway Company. The latter company employed the plaintiff in error to transfer this car from its Union Depot to the station of the said Chattanooga Station Company in order that it might there be picked up by the Southern Railroad Company and the journey of the car completed to Jersey City by the latter road. This car was accustomed to arrive in Chattanooga about 3:30 o'clock at night. In performance of its duty, the plaintiff in error, every night, was accustomed to make the transfer above mentioned. On the night in question the plaintiff in error sent its engine along its own track in a northeasterly direction to a point near East End avenue, in the city of Chattanooga, where it connected with the track of the Nashville, Chattanooga & St. Louis Railway Company, or Western & Atlantic Railroad, which is a part of the Nashville, Chattanooga & St. Louis Railway Company system. After reaching the track of the Nashville, Chattanooga & St. Louis Railway Company, the plaintiff in error's engine had to proceed west, and in doing so had to back in that direction with its tender forward. The junction of the plaintiff in error's track and that of the Nashville, Chattanooga & St. Louis Railway Company, where the backward movement was begun was about 1 1/2 miles from the Union Depot. In making the transfer of the sleeper it was necessary for the plaintiff in error's engine to proceed from its own station along its own track northeastwardly a half mile until it reached this junction of its track with the track of the Nashville, Chattanooga & St. Louis Railway Company. Having reached this point, plaintiff in error's engine then proceeded backing down this track to a point about 350 feet west of the Belt Railway line (which is only a short distance west of East End avenue), where it ran upon and injured defendant in error. The point where the injury occurred was within the station limits of the Nashville, Chattanooga & St. Louis Railway Company, within which limits, according to one witness, the Nashville, Chattanooga & St. Louis Railway Company makes up its trains that go out from the Union Depot; but there is also one witness who testifies that no switching is done on these tracks. It is not denied that all trains, or cars, from the Union Depot or the Craven yards of the Nashville, Chattanooga & St. Louis Railway Company destined for the Southern Railway Company or the Cincinnati, New Orleans & Texas Pacific Railway Company are delivered over these tracks. The conflict just noted in the evidence is immaterial, depending as it does wholly on the views of the different witnesses as to what is a switching operation, a question which we must determine from our cases, there being no conflict in the evidence as to the movements made by the engine in question in transferring the sleeper from one track to the other in the present case.

The defendant in error, when he received the injury, was standing on the track of the Nashville, Chattanooga & St. Louis Railway Company in company with one Angell. Defendant in error says that he looked along the track at the time he entered upon it, but did not afterwards look, nor does he testify that he listened for an engine or train. The coming of the engine was discovered by Angell, who saved himself by a sudden movement, at the same time warning the defendant in error. The latter jumped, but the engine struck him before he could get out of its sweep. There were several persons on the engine besides the engineer and fireman, these other persons constituting a part of the crew that attended the engine. No one on the engine discovered the defendant in error, or knew that he had been injured. So the engine proceeded westward and returned with the sleeper. Knowledge of the injury being then communicated to those in control of the engine, the defendant in error was removed from the track and transported to a safe place on the sleeper. The defendant...