Citizens' St. R. Co. v. Burke

• Decision Date: 14 April 1897
• Citation: 40 S.W. 1085
• Parties: CITIZENS' ST. R. CO. et al. v. BURKE.
• Court: Tennessee Supreme Court

40 S.W. 1085

CITIZENS' ST. R. CO. et al. v. BURKE.

Supreme Court of Tennessee.

April 14, 1897.

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action by C. C. Burke against the Citizens' Street Railroad Company and another. From a judgment for plaintiff, defendants appeal. Reversed.

Turley & Wright, for appellants. George B. Cleveland, for appellee.

WILKES, J.

This is an action for damages for personal injuries. There was trial before a jury in the court below, and verdict and judgment for $2,000, and defendants have appealed and assigned errors. The plaintiff is an architect, living and having an office in Memphis, Tenn. In passing to his office along Main street, he came across a street car standing upon a track on Madison street, which came up to or very near to the foot crossing. He passed behind this car, attempting to cross the street, when, just as he cleared the car, he was struck by a horse and buggy driven by the defendant Frank Smith, superintendent of the railroad company, who was driving to where the car was standing, to repair the trolley wires, which had been broken at this point. The place where the break occurred was one of the most crowded points in the city, so far as passing was concerned, and it was necessary to make speedy repairs of the wires, in order to avoid injuries to passersby. Smith went to the place in his buggy to make the repairs. There is some conflict of evidence as to how fast Smith was going when the plaintiff, stepping from behind the car which had stopped, was run against by the horse. The horse was immediately checked, so that the buggy did not run over the plaintiff, who was knocked down and severely injured. The plaintiff was watching the car when he attempted to cross, and also the repair wagon, which was upon one side, and his view of the other side, upon which the buggy was coming, was cut off or obstructed. It appears also that the plaintiff was a man of defective hearing, and could not have heard the approach of the buggy, as one of ordinary hearing might.

The plaintiff was allowed, over the objection of defendants, to state that, in consequence of his injuries, he lost several contracts into which he had previously entered, stating the contracts, with whom made, and amount he expected to realize from each. The ground of objection is that the declaration does not set out any special damages as arising out of such contracts. It is well settled that special damages cannot be recovered unless the grounds for them are alleged in the declaration. Rose v. Perry, 8 Yerg. 156; Eastham v. Crowder, 10 Humph. 194; Simpson v. Markwood, 6 Baxt. 340; Fry v. McCord, 95 Tenn. 678, 33 S. W. 568; Ferguson v. Moore (Tenn.) 39 S. W. 341. This assignment is well made.

We do not consider evidence as to the manner in which the trolley wires were constructed as material, and the assignment of error on this point is not well made.

In the progress of the trial, a juror said to the court: "Suppose a witness tells a thing, and a juror happens to have personal knowledge of the situation, and knows when a witness' testimony is the truth, and when it is not the truth; can we take that into consideration?" The court replied: "Well, that's just a mistake. I have charged you that way before. It don't make...