Cincinnati, N. O. & T. P. Ry. Co. v. Denton

• Decision Date: 09 January 1940
• Docket Number: 2.
• Citation: 140 S.W.2d 796,24 Tenn.App. 81
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. DENTON.
• Court: Tennessee Court of Appeals

140 S.W.2d 796

24 Tenn.App. 81

CINCINNATI, N. O. & T. P. RY. CO. v. DENTON.

No. 2.

Court of Appeals of Tennessee, Eastern Section.

January 9, 1940

Certiorari Denied by Supreme CourtApril 6, 1940.

Appeal in Error from Circuit Court, Hamilton County; Oscar Yarnell Judge.

Action by Ethel Denton, administratrix of the estate of Luther Denton, deceased, against the Cincinnati, New Orleans & Texas Pacific Railway Company, for injuries and death of the intestate resulting from a fall while alighting from a train on which he was riding as a passenger.From a judgment for the plaintiff, defendant appeals in error.

Judgment in accordance with opinion.

Lynch Phillips, Hall & Allison, of Chattanooga, for plaintiff in error.

Thach & Thach, of Chattanooga, for defendant in error.

McAMIS Judge.

This suit was originally instituted by Luther Denton to recover damages from the Railway Company for personal injuries alleged to have been sustained when he fell while riding as a passenger for hire upon one of defendant's trains, the declaration charging that while in the act of alighting from the train a sudden and violent jerk of the locomotive caused him to lose his footing and fall.The declaration also avers as a cause of action defendant's failure to furnish plaintiff medical attention after he was injured.

The alleged fall occurred on December 8, 1937, at Dayton Tennessee.The original plaintiffLuther Denton died July 1, 1938, and the suit was thereupon revived by the widow, Ethel Denton, who qualified as administratrix of the estate.The declaration of the administratrix adopted the averments of the original declaration and, in addition, charged that the intestate, Luther Denton, died as a result of said fall.Upon the trial of the case, the circuit judge, upon motion of defendantRailway Company, directed a verdict in its favor insofar as plaintiff, administratrix, sought to recover for the death of said Luther Denton, there being no evidence that his death resulted from the fall.From this action the administratrix has not appealed.

The court otherwise overruled defendant's motion for a directed verdict and submitted the case to the jury as one to recover for personal injuries, loss of time, medical expenses, etc.The jury returned a verdict for $1,500 in favor of the administratrix and, its motion for a new trial having been overruled, the Railway Company has appealed in error to this court, insisting that there is no evidence to sustain a jury finding that the deceased fell as the result of a sudden and violent jerk of the train as charged in the declaration and that there is no evidence to sustain a finding that defendant breached its duty of providing medical attention and treatment after the deceased had alighted from the train at Dayton.

It is conceded that unless the testimony of Luther Denton, taken by deposition before his death, may be found to be so self-contradictory and inconsistent as to amount to no evidence, there is some material evidence upon which the jury may have based a finding that Denton fell as a result of a violent and unusual movement of the train.Defendant's insistence, in this connection, is that Denton's testimony, the only evidence offered by plaintiff upon the subject, is as much to the effect that he fell as a result of stepping on an orange peel as it is to the effect that he fell as a result of the negligence of the defendant charged in the declaration.It is insisted that, since the evidence offered by defendant affirmatively shows that there was no sudden and violent movement of the train causing the deceased to fall but that he fell as a result of stepping on an orange peel, a cause for which defendant would not be liable, there is no evidence to sustain the finding of the jury.

Luther Denton testified that he intended to get off the train at Dayton; that when the flagman called the station he arose from his seat and held to the back of the seat; that when the flagman called the station the second time he left his seat and started toward the front of the coach.As to what then occurred he testified:

"I started and took about 2 steps and there was a sudden jar that threw me off my feet on my right hip here. ***

"Q.When the train gave a sudden jar what happened to you?

"A.My feet went out from under me.

"Q.Did you fall?

"A.Yes, sir."

On cross-examination, he testified as follows:

"Q.What caused you to fall, Mr. Denton?

"A.The jar of the locomotive, I could not tell.If it was not the jar from the train I could not tell what else.It was bound to be something in the train that throwed me.I was working and stout.There was nothing wrong with me.Working every day in the week; walking four miles on the mountain; standing up there 16 hours every night for the W. P. A.

"Q.Do you really know what caused you to fall?

"A.The jar of the train in some way.

"Q.The jar of the train in coming to a stop?

"A.Yes, sir.I could not say what else it could have been.

"Q.Did orange peel have anything to do with your fall?

"A.I am not going to say whether it did or not.It might have.I could have stepped on one and it got among my feet, my feet got out from under me on an orange peel.

"Q.Youmean an orange peel could have caused your fall?

"A.It could have done it.I could not say.There was something in the train that caused all this trouble."On redirect examination Mr. Denton testified as follows:

"Q.Youstate there was something in the locomotive that caused you to fall?State as well as you remember.

"A.He released his brake in some way.I am no railroad man.I used to be in 1902.It may have been when he released his air that threw me to my feet.

"Q.State whether or not there was an unusual jerk about the train.

"A.There was an unusual jerk.

"Q.Was it a violent jerk?

"A.It was to me.I could not stand up under it after I turned loose from the seat."

The foregoing is the entire testimony offered by plaintiff to establish a sudden and violent movement of the train.Defendant offered several witnesses who testified in substance that after Mr. Denton fell they saw some orange peel in the aisle of the coach and saw wet skid marks apparently caused by someone stepping on the peel.There is no definite proof that Denton stepped on the orange peel but the circumstances are, perhaps, such that the jury might have so concluded upon all the evidence.

We think the testimony which we have quoted fails to establish as the cause of the fall the negligence charged in the declaration.It is true the witness at one point in his...