East Tennessee, V. & G. Ry. Co. v. Hull

• Decision Date: 13 October 1889
• Citation: 12 S.W. 419,88 Tenn. 33
• Parties: EAST TENNESSEE, V. & G. RY. CO. v. HULL.
• Court: Tennessee Supreme Court

12 S.W. 419

88 Tenn. 33

EAST TENNESSEE, V. & G. RY. CO. v. HULL.

Supreme Court of Tennessee.

October 13, 1889

Error to circuit court, Sullivan county; A. J. BROWN, Judge.

Thomas Curtain and Taylor & St. John, for plaintiff in error.

Haynes & Haynes, for defendant in error.

FOLKES J.

The railroad company has appealed in error from the verdict and judgment against it for damages for personal injury occasioned by a train of cars belonging to and operated by it. The facts of the case need not be stated, in the view we have taken of the case. For the plaintiff in error, it is insisted that the judgment should be reversed for error in the charges of the court upon the law of negligence. The portion of the charge objected to is as follows: "If the proof should show that it was the greater or grosser negligence of the defendant, through its agents or employes who were the superior of this plaintiff, or by using defective, imperfect, and unsafe machinery, that he was injured, he could recover; but if, at the same time, the evidence shows you that the negligence, or want of care or caution, upon the part of the plaintiff himself contributed to that injury, then that would be contributory negligence and would be looked to and considered in mitigation of damages; that is, you could not give as much damages for the injury he sustained where his own want of care or negligence contributed as you could when he had been entirely blameless. The greater the contributory negligence upon his part, the less damages, if he should be entitled to any." This is manifestly erroneous. It invited the jury to a comparison of the negligence between plaintiff and defendant, and directed them to render verdict for the plaintiff if they should be of opinion that the injury was caused by the greater or grosser negligence of the defendant. This charge presents the doctrine of "comparative negligence," which this court has more than once said has never prevailed in this state. The error of the charge, in this regard, is emphasized by the statement, in that connection, concerning the doctrine of contributory negligence. The jury were nowhere told that the negligence of the plaintiff which might and ought to be considered in mitigation of damages should be such as contributed remotely, and not directly, to the injury; and that, if the negligence of plaintiff contributed directly to the injury, as the proximate cause thereof, instead of...