Hydes Ferry Turnpike Co. v. Yates

• Decision Date: 03 March 1902
• Citation: 67 S.W. 69,108 Tenn. 428
• Parties: HYDES FERRY TURNPIKE CO. v. YATES.
• Court: Tennessee Supreme Court

67 S.W. 69

108 Tenn. 428

HYDES FERRY TURNPIKE CO. v. YATES.

Supreme Court of Tennessee.

March 3, 1902

Appeal from circuit court, Davidson county; J. A. Cartwright Special Judge.

Action by Mrs. S. J. Yates against the Hydes Ferry Turnpike Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. C McReynolds, for appellant.

Jo. W Byins, for appellee.

McALISTER J.

Plaintiff below recovered a verdict and judgment, before the Honorable J. A. Cartwright, special judge, and a jury, against the turnpike company, for the sum of $2,500 damages, for personal injuries. The company appealed, and has assigned errors.

The first assignment we will notice is that the court erred in not sustaining defendant's motion in arrest of judgment. The substance of the motion was that the declaration sets out no facts showing negligence on the part of defendant, and is wholly insufficient in law to warrant a recovery. It should be remarked that on the 11th March, 1898, a demurrer was interposed to this declaration; but the only cause assigned was that it failed to show defendant had any right to own and operate a turnpike in this state, or to show for what purposes defendant was incorporated. The demurrer was sustained, and the plaintiff was permitted to file an amended declaration. Thereupon the defendant filed a plea of not guilty. It has been held that after judgment on demurrer there can be no motion in arrest of judgment for any exception that might have been taken on arguing the demurrer. Railroad Co. v. Sampson, 31 Ill.App. 513; Tidd, Prac. 918. But it has also been held that a motion in arrest for a fatally defective complaint may properly be sustained, even though a demurrer to such a complaint had been previously overruled. It is said that the court, by ruling wrongly on a demurrer, does not preclude itself from afterwards ruling rightly upon a motion in arrest of judgment. Stewart v. Railroad Co., 103 Ind. 44, 2 N.E. 208; Newman v. Perrill, 73 Ind. 154; Field v. Slaughter, 1 Bibb, 160; Griffin v. Justices, 17 Ga. 96. It will be observed that the grounds now assigned in arrest of judgment are wholly different from the causes assigned on the demurrer, but the weight of authority is that, if all the same causes had been assigned in the demurrer, the court would not have been precluded from sustaining the motion in arrest. If this is so, it must follow that, where the particular cause assigned in arrest was not raised by the demurrer, the court could nevertheless look to it on the motion.

The declaration in this cause contains three counts. It is only necessary to notice the second count, which is probably fuller and more explicit as a pleading than the other counts. It is alleged in this count that defendant turnpike company is a corporation duly chartered and organized under the laws of the state of Tennessee, and as such owns and operates a turnpike from Nashville to Ashland City, in Cheatham county; that, for the purpose of collecting its tolls, it has at proper intervals along said turnpike constructed or erected gates or poles, which may be raised or lowered to allow travelers who have paid their tollage to pass thereunder; that it was the duty of defendant to provide safe and suitable gates or poles for such purpose, with due regard to the safety of those who might pass thereunder, and to maintain same in proper repair, but that defendant failed, negligently, willfully, and wrongfully, to do this, and plaintiff alleges that by reason thereof, on or about the 18th July, 1897, and while she was lawfully passing in a buggy along said turnpike in Davidson county, about eight miles from the city of Nashville, and after she had paid her toll, and after the employé of the defendant had raised said gate or pole for her to pass under, and she had driven or passed thereunder, and while she was exercising proper care and caution, said pole fell, striking the plaintiff upon the head, body, and breast, knocking her senseless, and greatly bruising and injuring her, etc. It was assigned on the motion in arrest that the declaration fails to specify any fact or facts upon which a charge of negligence can be based, or in what way defendant's gates were improperly or negligently constructed, maintained, or operated, or which one of its poles fell on plaintiff. As already seen, the declaration alleges that the tollgate in question was about eight miles from the city of Nashville; and this, we think, was sufficiently specific to inform the company what tollgate was meant. Again, it was not necessary for the plaintiff to point out the particular defects in the tollgate that caused it to fall, or to show wherein the company's servant was negligent in its management. It was sufficient to allege that the pole was permitted to fall on plaintiff's head as she was in the act of passing thereunder. The very fact that the pole fell was prima facie evidence of negligence. "Res ipsa loquitur." A presumption of negligence would at once arise. It was the duty of the turnpike company in collecting its tolls so to manage its gates as not unnecessarily to injure the traveling public. The case of Stokes v. Saltonstall, 13 Pet. 190, 10 L.Ed. 115, illustrates the principle. In that case Saltonstall sued Stokes for an injury sustained by his wife by the upsetting of a stage coach in which she was a passenger. The court held that the facts that the carriage was upset and the plaintiff's wife injured were prima facie evidence that there was carelessness or negligence or want of skill on the part of the driver. This rule was recognized in Railroad Co. v. Mitchell, 11 Heisk. 400, but held inapplicable to the facts of that case. Sommers v. Railroad Co., 7 Lea, 201. In Young v. Bransford, 12 Lea, 237, which was an action to recover damages for the death of plaintiff's intestate, caused by the explosion of a steam boiler, the court held that from the mere fact of an explosion it is competent for the jury to infer, as a proposition of fact, that there was some negligence in the management of the boiler, or some defect in its condition. The court, in considering the question, said, "The reason of the rule is that the proof which establishes the injury shows, also, circumstances from which some negligence or want of care may be attached to the wrongdoer;" citing Curtis v. Railroad Co., 18 N.Y. 543, 75 Am. Dec. 258, and Holbrook v. Railroad Co., 12 N.Y. 236, 64 Am. Dec. 502. In the case now being decided we are of opinion a stronger rule applies than that laid down in Young v. Bransford. It is not only competent for the jury to infer negligence, as a proposition of fact, from the proof that the pole was permitted to fall on a traveler as she was in the act of passing through the tollgate, but such proof raises a presumption of negligence against the company, and shifts the burden of proof upon it to show that it was guilty of no negligence. In this view, the declaration clearly stated a cause of action, and the motion in arrest of judgment was properly overruled.

The next assignment is that there is no evidence to support the verdict. The defendant company owns and operates a turnpike between Nashville and Ashland City, in Cheatham county. The accident to plaintiff happened at the company's first tollgate about eight miles from the city of Nashville. The tollgate keeper at that time was an old man, about 83 years of age. The tollgate consisted of a pole about 28 feet in length, 6 inches in diameter at one end, and 2 1/2 inches at the other end. The larger end was set in a fork on the side of the pike, and 22 feet of the pole extended across the pike to the tollgate house, where it was secured by a goose neck in the end of a post. The remaining 6 feet of the pole, extending back of the fork, had attached an iron cylinder or cogwheel, weighing, as variously estimated, from 75 to 35 pounds. This weight and 6 feet of the pole back of the fork, being heavier than the 22 feet extending across the pike, raised the pole when the small end was freed from restraint. The pole was thus raised and lowered by means of a rope used by the gate keeper. The iron weight or cogwheel, with an opening in its center, was slipped on over the short end of the pole back of the fork, and in 1894, when first attached to the pole, was secured by wooden wedges driven in between it...