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

• Decision Date: 27 April 1890
• Citation: 13 S.W. 694,88 Tenn. 671
• Parties: CHESAPEAKE, O. & S.W. R. Co. et al. v. FOSTER.
• Court: Tennessee Supreme Court

13 S.W. 694

88 Tenn. 671

CHESAPEAKE, O. & S.W. R. Co. et al. v. FOSTER.

Supreme Court of Tennessee.

April 27, 1890

Appeal from circuit court, Dyer county; THOMAS J. FLIPPIN, Judge.

Parks & Johnston, for appellants.

Holmes Cummings and Latta, Parks & Draper, for appellee.

CALDWELL J.

On the 2d day of August, 1888, David Foster, a colored man, about 70 years of age, while walking upon the railroad track about one mile south of Newbern, Tenn., was overtaken by a freight train, struck by the locomotive, and so severely injured that he died within an hour. Eliza Foster, his widow, having first taken out letters of administration on his estate, brought this action against the plaintiffs in error, claiming $10,000 damages. She obtained a judgment for $300, and the defendants below have appealed in error. Appellants assign error (1) on the original charge of the trial judge; (2) on his action in refusing to instruct the jury as requested; (3) on what is termed the "second charge."

1. The first assignment cannot be maintained, because the original charge of the court upon which it is based, and which is complained of as erroneous, is not made a part of the record by bill of exceptions. It is true that what purports to be a charge in the case is found in the transcript, but it precedes the bill of exceptions, and is in no way made a part of it. Therefore, under a familiar and well-established rule of practice, it cannot be considered for any purpose in this court. Huddleston v. State, 7 Baxt. 55; Bass v State, 6 Baxt. 583; McGhee v. Grady, 12 Lea 96; Owens v. State, 16 Lea, 1.

2. The next assignment fails for equally conclusive, but different reasons. To put the trial judge in error for refusing to give special instructions to the jury it must appear that they were requested after, and not before, he submitted his general charge, the object of such instructions being not to suggest in the first instance what the charge shall be, but rather to supply some omission or correct some mistake made in the general charge, to present some material question not treated at all, or to limit or extend, eliminate or more accurately define, some proposition already submitted to the jury. Under the practice of this court, as laid down in Roller v. Bachman, 5 Lea, 158, 159, the several propositions, which it is insisted were erroneously refused in this case, cannot be considered for purposes of reversal, because they were submitted to the trial judge "at the conclusion of the evidence," and no request for additional instruction was made after he had delivered his charge. Of course, we know it is usual for counsel, by oral argument or written statement, (sometimes both,) to present their views of the law of the case in advance of the charge. That is a proper practice, and instead of being condemned is to be encouraged. Yet such presentation is not to be treated as a request for additional instruction, and made ground for reversal, if not adopted by the trial judge. The office of special or additional instruction is that already indicated. It may be said that counsel, who have submitted one view of the law, should not be put to the useless and embarrassing task of repeating it, in the form of an additional instruction, after the court has given a contrary proposition in charge. That is true. But in that case nothing is lost if the request is not made, because, if the charge as given is erroneous, a reversal will follow, without the request, and, if correct, the request could not change the result. Again, the record, after setting out the propositions submitted for charge, recites that the request was "refused, and the court did instruct the jury as follows." As a matter of fact nothing follows, and the bill of exceptions remains in that incomplete condition, failing to show what instructions were given instead of those requested. So far as we are informed, they may have contained a full and accurate statement of the law applicable to every question arising in the case. Whether this be true in reality cannot be ascertained, but it must be presumed to be so in the absence of those instructions themselves. Lane v. Keith, 2 Baxt. 189; Insurance Co. v. Sturges, 12 Heisk. 339.

3. The other assignment is made on the following recital in the bill of exceptions: "The jury, having considered the case returned, and asked the court whether, if they found that the defendant had not strictly complied with all the statutory rules or precautions as given in charge, yet that the deceased's own want of care and gross neglect was the direct cause of his injury and death, they could not yet find for the defendant; to which the court replied that they could not, but should consider such contributory neglect on the part of the deceased in mitigation of damages. If they found the railroad company wanting in full performance of statutory duties, plaintiff would be entitled to some damages in any event." It is insisted that this action of the court was erroneous, and that he should have answered the question of the jury in the affirmative. Taking the case as stated in the question, the contention is that, inasmuch as the gross neglect of the deceased was the direct cause of his injury and death, his negligence should operate, not merely in mitigation of damages, but as a bar to the action, notwithstanding the failure of the railroad employes to observe the precautions prescribed in section 1166 of the Code. Learned counsel make an able and forcible argument in support of this view; yet we think it contrary to the obvious meaning of the...