City of Memphis v. Uselton
Decision Date | 18 February 1953 |
Citation | 37 Tenn.App. 9,260 S.W.2d 293 |
Parties | CITY OF MEMPHIS et al. v. USELTON. |
Court | Tennessee Court of Appeals |
C. C. Crabtree, Wesley Harvell and W. B. Ingram, Jr., Memphis, for plaintiffs-in-error.
Harold R. Ratcliff, Memphis, for defendant-in-error.
This is an appeal in error by the defendants below from an adverse verdict of the jury and judgment in the amount of $1,250 for personal injuries suffered by the plaintiff by reason of the ignition of escaping gas.
At the conclusion of plaintiff's evidence defendants moved for a peremptory instruction in their favor which was overruled; there was a like motion at the close of all of the evidence, which was overruled. Defendant's motion for a new trial did not include the ground that the court erred in denying this latter motion, but did rely upon the ground that the weight of the evidence is against the verdict and other grounds relating to alleged errors in the charge to the jury.
The motion for a new trial was overruled and defendant has appealed and assigned error.
The first assignment is to the failure of the Court to grant the motion at the close of the plaintiff's evidence.
This must be overruled because it is well settled that the motion is waived when defendant adduces evidence after the motion has been overruled. Reid v. Messer, 33 Tenn.App. 255, 231 S.W.2d 400.
The second assignment goes to the denial of the motion at the close of all the evidence.
It is suggested by counsel for plaintiff that this assignment cannot be considered, because the denial of the motion by the trial court was not made a ground in the motion for a new trial and hence under rule 11(4) and (5) of the Court of Appeals, which is the same as Rule 14(4) and (5) of the Supreme Court, will not be considered on appeal. This view is supported by Jacks v. Williams-Robinson Lumber Co. 125 Tenn. 123, 140 S.W. 1066, which definitely holds that an assignment of no evidence to support the verdict cannot be made on appeal, where the same was not called to the attention of the trial court in the motion for a new trial, even if it was asserted in the motion for a new trial the preponderance of the evidence was against the verdict.
The very opposite, however, is held in Ragan v. Ezell, 166 Tenn. 212, 60 S.W.2d 148, with no reference to the prior decision and no citation of authority.
Strangely enough the Jacks case has been repeatedly cited by the Supreme Court as late as Mashburn v. Ne-Hi Bottling Co., 191 Tenn. 135, 138, 229 S.W.2d 520, 232 S.W.2d 11, and by this Court as late as Savage v. Spur Distributing Co., 33 Tenn.App. 27, 35, 228 S.W.2d 122, for the general rule that no assignment no made a ground of the motion for a new trial will be considered on appeal. Yet the Ragan case has never been cited on the specific point.
If the Ragan case is not to be followed, the prerogative of so stating, of course, belongs to the Supreme Court and not to this Court.
Accordingly, the ground of preponderance of the evidence stated in the motion for a new trial is a sufficient predicate for an assignment of error on appeal that there is no evidence to support the verdict, where the only right sought is a new trial. Ragan v. Ezell, supra.
But it is not sufficient to permit the appellate court to direct a verdict, because the attention of the trial court was not called to such alleged error in the motion for a new trial.
The assignment of error as made is the equivalent of an assignment there is no evidence to support to verdict. Southern Ry. Co. v. Lewis & Adcock Co., 139 Tenn. 37, 201 S.W. 131, L.R.A.1918C, 976.
We therefore should review the evidence to determine whether there is any evidence to support the verdict.
The undisputed facts are that defendant was taking steps to relocate a gas line near Lamar and Airways Boulevard in Memphis so as to remove it from under the pavement. A modern ditching machine was being used to dig the new trench and in order for it to operate a part of the concrete apron or driveway in front of a group of business houses had to be broken up with air hammers and removed out of the path of the machine. At one point there was a sleeve or round pipe about three inches in diameter coming up vertically from the petcock or valve connecting the street line with the consumer line to adjacent premises, which valve is about two feet below the surface of the concrete. The vertical pipe is a housing for the valve and permits operation of the same from the surface level; it has a cover on top and a grooved bottom so as to rest just above and around the upper side of the gas line but is not in immediate contact with the pipe because it is suspended by being embedded at the top in the surrounding concrete.
In the forenoon of the day of this accident the defendant's crew of workmen, about 18 men and a foreman, had broken up and removed the concrete around the top of this pipe leaving it exposed above the dirt level about six inches.
In the path of the new ditch line was a heavy street roller belonging to one of the contractors engaged in the widening etc. of Lamar Avenue.
Defendant had notified the contractor to remove it and the latter's foreman had brought plaintiff, the operator there, about midday for such...
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Schenk v. Gwaltney
...Therefore, in our opinion it is too late on this appeal for the plaintiff in error to raise such question. City of Memphis v. Uselton, 1953, 37 Tenn.App. 9, 260 S.W.2d 293; Savage v. Spur Distributing Co., Inc., 1949, 33 Tenn.App. 27, 35, 228 S.W.2d Assignment of error No. II insists that t......