City of Knoxville v. Cox

• Citation: 53 S.W. 734,103 Tenn. 368
• Parties: MAYOR, ETC., OF CITY OF KNOXVILLE v. COX.
• Decision Date: 28 October 1899
• Court: Supreme Court of Tennessee

53 S.W. 734

103 Tenn. 368

MAYOR, ETC., OF CITY OF KNOXVILLE v. COX.

Supreme Court of Tennessee.

October 28, 1899

Appeal from circuit court, Knox county; Joseph W. Sneed, Judge.

Action by one Cox against the mayor and aldermen of the city of Knoxville. Judgment for plaintiff, and defendant appeals. Affirmed.

J. C.J Williams, for appellant.

T. L Carty, for appellee.

BEARD J.

The defendant, a negro, about 73 years of age, brings this suit to recover damages for an injury sustained by him in falling over an unprotected supporting wall to the east side of Central avenue, one of the public streets of the city of Knoxville. The accident occurred near the point of the intersection of this avenue with Willow street, about 9 o'clock at night, when defendant in error was returning from the market to his home by a route usually taken by him. There had been a guard rail running along the top of this supporting wall, extending as far as Willow street, for the safety of persons using Central avenue; but this was removed a month or more before this accident, by a contractor who was doing some work for the city. The fact of its removal was known to plaintiff in error, but at the moment of the accident it had escaped him, and he was unconscious of the danger incident thereto. Passing along Central avenue, and reaching what defendant in error supposed to be Willow street, he turned for the purpose of entering it, when he stepped over the wall in question, and was precipitated to the rocks beneath, receiving the injuries of which he complains. The point where this occurred was about five feet short of Willow street. It was unlighted by a lamp or electric light, and was thrown in deep shadow by a house or houses across the street. On this state of facts the trial judge charged the jury as follows: "It is insisted in this case by the defendant that it is not liable, but that the plaintiff's negligence caused his injury; and it is strenuously insisted that he had previous knowledge of this guard rail being removed for the purpose of making repairs there, and that he wrongfully, negligently, and carelessly walked off at that place notwithstanding such knowledge. That, like the other charge of negligence on the part of the city in this case, whether it is made applicable to the plaintiff's contention or that of the defendant, is a mixed question of law and fact for the jury to determine from all the evidence under the charge. You are the sole judges of the evidence, but of the law the court is the judge, and you must take the law, and apply it to the facts, as the court gives it; for, as to that branch of it, you are bound by the instructions of the law which the court may give. You are to consider the fact shown from the proof that the plaintiff had knowledge of the barrier or guard rail being removed, and then say whether, considering his age, and all the facts surrounding the accident, he exercised ordinary care and caution for his own safety. If he did not, and his negligence was in any sense the prime, proximate, and efficient cause of his own injury, he could not recover, and it would be your duty to find for the defendant." Being dissatisfied with this instruction, the defendant below presented to the trial judge two special requests, by which he was asked to say to the jury that, if plaintiff had knowledge that this wall, at the point where the accident happened, was unprotected by a guard rail or otherwise, it was his duty to keep such knowledge in mind; and if, in a moment of forgetfulness or unconsciousness of the danger to which this lack of protection exposed him, and lacking ordinary care, he received the injury, then "the law will attribute his injury to his contributory negligence, and he could not recover damages in this case." These requests were declined by the court, and this action is here assigned for error.

These requests were unsound in at least two particulars. In the first place, the question of contributory negligence whenever the facts of the case raise it, cannot be settled by the court, but goes to the jury, whose exclusive province it is to consider and determine it. In the second place, in no case where contributory negligence on the part of the...