Hamburger v. Illinois Cent. R. Co.

• Decision Date: 16 June 1917
• Parties: HAMBURGER v. ILLINOIS CENT. R. CO.
• Court: Tennessee Supreme Court

196 S.W. 144

138 Tenn. 123

HAMBURGER v. ILLINOIS CENT. R. CO.

Supreme Court of Tennessee.

June 16, 1917

Appeal from Circuit Court, Shelby County; A. B. Pittman, Judge.

Action by Sigmund Hamburger against the Illinois Central Railroad Company. There was judgment for plaintiff upon the verdict and an order overruling defendant's motion for new trial but thereafter judgment was rendered for defendant notwithstanding the verdict. Both parties appealed to the Court of Civil Appeals, and to review the decision of such court this appeal is taken.

John E Bell, Edwin G. Bell, and W. H. Borsje, all of Memphis, for plaintiff.

Sivley & Evans and Burch & Minor, all of Memphis, for defendant.

LANSDEN J.

This is an action for personal injuries received by plaintiff at the crossing of the defendant railroad and Plum street, near the city of Memphis. There were verdict and judgment for the plaintiff below in the sum of $4,200, June 11, 1915. On June 19th the defendant made a motion to set aside the verdict of the jury and to render judgment in favor of the defendant, in accordance with the motion made by the defendant at the time of the trial for the court to instruct the jury to return a verdict for defendant. This motion was sustained, "and the verdict of the jury herein be set aside and for naught held, and judgment is hereby rendered in favor of the defendant and against the plaintiff." Later, on June 28, 1915, a nunc pro tunc order as of June 19th was entered in the following language:

"In this cause, after due consideration of the several grounds, the motion of defendant for a new trial is by the court overruled and disallowed, to which action of the court the defendant excepts. This order is entered nunc pro tunc as of June 19, 1915."

Both plaintiff and defendant prayed and perfected appeals, and on the same day plaintiff filed a bill of exceptions. The motion for a new trial contained 15 general divisions and numerous subdivisions of each general division, and among other things presented the question as to whether the verdict of the jury was supported by the preponderance of the testimony. It was followed by the motion to set aside the verdict of the jury and to render a verdict on behalf of the defendant, and this motion presents four questions, all of which are included in the motion for new trial. They are: First, there is no evidence to support the verdict; second, because no negligent act was proven against the defendant; third, because the allegations of the declaration are not such as would entitle the plaintiff to recover against the defendant; and, fourth, because the proof shows that the negligent act was not committed by the defendant.

In the progress of the trial, and before either of the foregoing motions was made or acted on by the trial judge, his honor made the following remarks:

"I want to say right now that I may do wrong in that, but, even if I believed that that was not the law, I would make the same ruling, because this presents a complex question of law, and if the circuit judge has any doubt at all about it, he should get the verdict of the jury on the facts of the case; no matter whatever he may thereafter conclude to do on this question of ownership, he should let the jury say whether the people who did operate this particular train were negligent or not. He should let the jury say if they were negligent, how much damage, and get all of that settled, and not stop the trial, and have it all to go over again, in the event he was wrong about it. So that, just as I did in that case against the city of Memphis and as I have done in a number of cases, even where I was of the opinion that the defendant was entitled to what we commonly call a 'P I,' I overruled it, and got an expression from the jury on the facts, which we have spent a day and a half developing here--not throw all of that away, and let the jury fix the facts, and say whether the crew that ran this train was guilty of negligence or not, and let the jury say whether the plaintiff was guilty of contributory negligence, and let the jury fix the amount, if they find you were negligent, or if the jury finds that the plaintiff was guilty of contributory negligence, or that this train was not guilty of negligence, that ends the case on the facts. If the jury finds against the railroad and fixes the amount, that settled the facts. We don't ever have to try them over again, and this question of law may still be settled, and I sustain Mr. Bell's motion at this moment, and shall state to the jury that all this confusing proposition about who was operating it is eliminated, that the I. C. is liable if the train crew were guilty of negligence, and the plaintiff was not guilty of contributory negligence. Now, is there any further evidence?"

It should be manifest upon the slightest reflection that we cannot approve of the practice adopted by the trial judge. The rules of practice adopted by this and other courts are intended to secure a faithful and efficient administration of justice. The administration of the law is not an idle ceremony, but is truly a serious business. To approve the judgment in this case would take from the defendant $4,200 and bestow it upon the plaintiff. It will be observed that judgment was entered upon the verdict, which was never set aside, and the judgment, so far as the form of practice adopted below is concerned, is still in force. The motion for a new trial raising the point, among other things, that the evidence preponderates against the verdict was overruled;...