De Glopper v. Nashville Ry. & Light Co.

• Decision Date: 04 February 1911
• Parties: DE GLOPPER v. NASHVILLE RY. & LIGHT CO.
• Court: Tennessee Supreme Court

134 S.W. 609

123 Tenn. 633

DE GLOPPER v. NASHVILLE RY. & LIGHT CO.

Supreme Court of Tennessee.

February 4, 1911

Error to Circuit Court, Davidson County; M. H. Meeks, Judge.

Action by William De Glopper, by next friend, against the Nashville Railway & Light Company. There was a judgment of the Court of Civil Appeals, reversing a judgment for plaintiff and dismissing the action, and plaintiff brings certiorari and assigns errors. Judgment of the Court of Civil Appeals affirmed.

W. H Washington and Thomas M. Andrews, for plaintiff in error.

R. F Jackson, for defendant in error.

LANSDEN J.

This action was commenced in the circuit court of Davidson county to reover damages for personal injuries received by William De Glopper, a boy 14 years of age, and there was a trial before the circuit judge and jury, and a verdict and judgment for plaintiff below in the sum of $4,000. An appeal was taken to the Court of Civil Appeals, and this judgment reversed and the suit dismissed, to review which action of the Court of Civil Appeals a petition for certiorari is filed in this court and errors assigned.

The plaintiff below states his cause of action in substance as follows: In the first count it is thus stated:

"At the time of said injuries, to wit, on the 27th day of October, 1906, the defendant was running a car towards the east on Church street, at and near its intersection with Ninth Avenue North, on its West Nashville line. Said car was in charge of a motorman of defendant, and had underneath it the electrical machinery which moved and controlled it. At the time of said injuries, said electrical machinery was defective and out of repair, and the wheels of said car were defective, so that, when revolving rapidly upgrade, they would throw off slivers or pieces of iron or steel with great force."

"At said place there exists a heavy upgrade east on Church street, and on the day and year aforesaid, whilst said car with said defective electrical machinery and defective wheels was ascending said steep grade, the plaintiff, seated in a buggy, was driving upon the street, and was in the exercise of ordinary care, and when near the side of said car the motorman negligently managed, manipulated, and handled the electrical and propelling power of said car, which together with the defective electrical machinery caused the wheels of said car to revolve at a furious, excessive, and dangerous velocity at the same place upon the rails, without giving the car any perceptible movement forward. Said unusual, extraordinary, and dangerous velocity of the wheels, together with the defects in the material of which they were composed, caused pieces of sliver or material to be broken therefrom and from the rails of the track of defendant, which were defective, and to be thrown off at a tangent, with tremendous force, one of which struck plaintiff in the eye, and cut, tore, and lacerated it so badly that it was necessary to take it out, which was accordingly thereafter done. The said injury and cut in plaintiff's eye was the direct and proximate result of the said negligence of defendant, and was directly due to the negligence of the motorman in failing to properly apply the electrical current, and to the negligence of defendant in having electrical machinery so defective as to cause the wheels to run away, get beyond control, and revolve at such excessive and tremendous velocity as to break and wear away the wheels of said car, as well as the rails of the track at that point, which, by the negligence of defendant, were defective and wholly unfit to bear the excessively rapid revolutions of the wheels at the same place, and said injuries were thus directly and proximately due to the grinding and wearing of the metal upon metal, and to the friction upon the tracks, all directly brought about by the said negligence of defendant and its agent and servant, the motorman in charge of said car. The defective condition of said electrical machinery, wheels, and rails was known to defendant, or could have been known by ordinary care, and was unknown to plaintiff."

In the second count it is thus stated:

"At the time of said injuries, to wit, on the 27th day of October, 1906, whilst plaintiff was driving along Church street at and near Ninth Avenue North, in Nashville, the defendant had negligently allowed and permitted its track at said point to become defective and dangerous, on account of the accumulation thereon of rock, gravel, débris, and other hard, sharp material, and on the day and year aforesaid, whilst plaintiff was driving along said street, seated in a buggy, a car of defendant was in such defective condition, and so negligently managed by the motorman of defendant in charge of it, that the wheels were thereby caused and permitted to run away and revolve in practically the same place at such excessive and dangerous velocity, in endeavoring to ascend a heavy grade at said point, as to grind up, take up, and throw off at a tangent said rock, gravel, débris, and other hard, sharp material and substance, and hurl it against and into the eye of plaintiff, whereby it was put out, and had to be cut out, thereby disfiguring and disabling him for life."

"From said injuries plaintiff suffered and still continues to suffer great pain and agony of body and mind, and was permanently injured, and lost much time, and expended considerable sums in nursing and doctor's bills."

"Before the happening of said injuries, defendant knew of the defects in the machinery of said car, which caused the wheels to revolve so rapidly at the same place upon the rails, as well as the defective condition of the surface of its track at said place, or might have known it by ordinary care, and it was unknown to plaintiff; and the said injuries were directly and proximately due to the said negligence of defendant, and the negligence of its motorman, in carelessly and negligently handling said car."

In the third count it is thus stated:

"At the time of the injuries set out in the counts of the original and amended declaration, to which reference is made herein and which are made a part hereof, the said car was negligently overloaded for the place and grade, and this fact, to wit, because there was more load upon the car than it could safely carry at that place, was the direct and proximate cause of the stalling of the car, and the extremely rapid revolutions of the wheels, which caused said sliver of metal or hard substances to be thrown off with great force, and which struck plaintiff in the eye, inflicting the injuries described and set out in said amended declaration."

The facts of the case are as follows:

On the 28th of October, 1906, William De Glopper, with two boy companions, was driving west on Church street, near Ninth avenue, and they met a car of the defendant in error coming east on the same street. There is a sharp ascent in the grade of the street at this point, and the car of the defendant in error stalled. It was heavily loaded, and the motorman applied the power in such a way that the wheels of the car revolved very rapidly without moving the car, except that the car would lurch forward a few inches or a few feet, and would again stop, and the wheels would continue to revolve rapidly in the same place. The plaintiff in error was in a small buggy drawn by a pony, and was on the left-hand side of the buggy next to the car, and when his position was somewhat in front of the rear trucks, and west of the center of the car, he suddenly threw his hand to his eye and cried: "Stop! Something flew from under that car and hit my eye."

The plaintiff in error was struck in the lower left-hand corner of the eye with a triangular substance with a rough edge, which penetrated the eye and destroyed it. On the following day his eye was removed. There was no one on the street west, east, or south of plaintiff in error who could have thrown the substance inflicting the injury in a manner in which it was done, and the windows of the car, as well as the vestibules, were all closed in such a way that no one upon the car could have done so. The car was 28 feet long and 12 feet high, and thus it made it impossible for the injury to have been inflicted by a person to the south of plaintiff in error. The wind was not blowing.

A witness was introduced as an expert, who says that the probable effect of revolving...