Chesapeake, O. & S. W. R. Co. v. Higgins

• Decision Date: 08 April 1887
• Citation: 4 S.W. 47
• Court: Tennessee Supreme Court
• Parties: CHESAPEAKE, O. & S. W. R. Co. <I>v.</I> HIGGINS.

4 S.W. 47

CHESAPEAKE, O. & S. W. R. Co.

v. HIGGINS.

Supreme Court of Tennessee.

April 8, 1887.

Appeal from circuit court, Shelby county.

Holmes Cummins, for Railroad Co. Wright & Folkes, for Higgins.

TURNEY, C. J.

The widow of Martin Higgins sues the railroad company for damages resulting from the loss of his life in a wreck of its engine and train. The declaration is demurred to on two grounds: (1) Higgins, as engineer, knew the condition of his machine, and continued in its use willingly, and without objection, assuming the risk incident to such defects; (2) no cause of action is stated. Sufficient averments appear in the declaration to overrule the demurrers.

The defendant pleaded not guilty, and that Martin Higgins resided in Kentucky at and prior to his death; that plaintiff resided there, and the greater part of defendant's road lay in that state; that the contract of employment of Higgins was made in that state; the engine placed in his control there; the breach of duty, if any, had occurred there; and therefore plaintiff could not sue in Tennessee. The accident occurred on that part of the road lying in Tennessee, where the road must be operated under its Tennessee charter, and the laws of this state. The residence of the deceased, or of the plaintiff, will not change the rule. She is as well comprehended in our statute as a citizen of the state.

There were several trials of the cause in the circuit court. In one there was a verdict for plaintiff for $500, which, on her motion, was set aside; her ground and the reason of the court being, "the verdict of the jury assessing plaintiff's damages as $500 was and is insufficient and inadequate for the loss of her husband." The motion to set aside was resisted, and a bill of exceptions was presented under the statute providing: "Where a motion for a new trial shall be granted or refused, either party may except to the decision of the court, and may reduce to writing the reason offered for said new trial, together with the substance of the evidence in the case; also the decision of the court on said motion; and it shall be the duty of the judge, before whom such motion is made, to allow and sign the same; and such bill of exceptions shall be a part of the record in the case. It shall be lawful for the appellant in such case to assign for error that the judges in the court below improperly granted or refused a new trial therein, and the supreme court shall have power to grant new trials, or to correct any errors of the circuit court in granting or refusing the same." Acts 1875, c. 124.

The effect of this statute is simply to give to this court the same power to reverse for error in granting new trials, and enforce verdicts improperly set aside, that it has always had to reverse judgments rendered upon improper verdicts. The consideration of the question in the record arising under this statute is just the same as it would have been had the court refused to set aside the verdict at the instance of the plaintiff, the defendant resisting, and the plaintiff had...