Jackson & S. St. R. R. v. Simmons

• Decision Date: 22 June 1901
• Citation: 64 S.W. 705
• Parties: JACKSON & S. ST. R. R. et al. v. SIMMONS.
• Court: Tennessee Supreme Court

64 S.W. 705

JACKSON & S. ST. R. R. et al. v. SIMMONS.

Supreme Court of Tennessee.

June 22, 1901.

Error to circuit court, Madison county; R. W. Haynes, Special Judge.

Action by Mary F. Simmons against the Jackson & Suburban Street Railroad and another. Jument against defendants, and they bring error. Reversed.

C. G. Bond and Hays & Biggs, for plaintiffs in error. R. F. Spragins and Bullock & Timberlake, for defendant in error.

McALISTER, J.

Mrs. Simmons recovered a joint judgment against the telephone and street railroad companies for the sum of $2,500 for the wrongful killing of her husband, R. P. Simmons. Both companies appealed, and numerous errors are assigned.

A preliminary motion is interposed in behalf of the defendant in error to dismiss the appeal upon the ground that it was granted after the expiration of the term; that is to say, after the term had expired by law. The record shows that the circuit court of Chester county begins its fall term on the third Monday in October, and that in 1900 it should have convened by law on the 15th of October. The motion for a new trial in the present case was made in the Madison circuit court on the 12th day of October, and, there not being sufficient time to dispose of the motion, it was held under advisement until Tuesday, October 16th, when the motion was overruled, the appeal prayed and granted, and 30 days allowed to file bill of exceptions. The bill of exceptions was signed October 31st, which was within the 30 days allowed by the court. As already stated, the Chester circuit court began by law October 15th, and the appeal in this case was granted October 16th. The insistence now made is that the circuit judge had no power or authority to grant the appeal after the expiration of the term. It is agreed that said action of the court was had three days after the time fixed by law for the adjournment of said court, and the second day of the term prescribed by law for Chester county. Counsel cites in support of this position the case of State v. Sneed, 105 Tenn. 714, 58 S. W. 1070, in which it appeared that the term of court in Knox county closed on the 1st of September, and on the 3d of September, when the entries were made praying and granting an appeal, and giving time to prepare bill of exceptions, the court was by law in Sevierville, Sevier county, and could not be open in Knoxville. This court held that the action of the court on the 3d of September was void, and of no effect, and the entry ordered on that day to be made as of date September 1st was unauthorized, and of no effect, etc. In that case, however, it appeared that, while the judgment was pronounced during the trial term, it was held up by order of the court, and no entry thereof was made until after the time for the adjournment of the Knox county circuit court and the convening of the Sevier county circuit court, when the trial judge caused an entry of the judgment to be made nunc pro tunc as of September 1st. This entry recited, however, that the prayer for an appeal was not made and granted until September 3d. The record thus showed that a judgment was entered September 1st, when court was in session, but no appeal was prayed or granted until September 3d, when the court was not, and could not be, in session. There was no motion for new trial. In the present case the motion for new trial was entered on Friday, October 12th, partially considered, and continued over until Saturday, October 13th, and, there not being sufficient time to finish it on that day, it was held under advisement until Monday, October 15th. On that day it was still unfinished, and went over until next day, the 16th, when it was overruled, the appeal prayed and granted. It appears that during the time the motion for a new trial was pending the jurors were being examined touching certain charges of misconduct. Shannon's Code, § 6057. The Acts of 1899 provide, viz.: "That whenever in the courts of this state any case is pending, and on trial by court or jury, undetermined at the time, the term at which it is pending expires, on account of time, and on account of the arrival of the succeeding term, the term shall be extended and continued into such succding term for all the purposes of trying, disposing of and returning verdict and rendering judgment in such case so pending and on trial the same as if such new term had not arrived." Acts 1899, p. 55, c. 40. We think the motion for a new trial is within the purpose and intendment of this statute, and that, so long as the motion for a new trial is being considered by the court, the case is not disposed of within the meaning of the act. If this construction is not correct, then the statute involves the absurdity of permitting an infringement upon the succeeding term to the extent of finishing a pending trial, but shutting off the motion for a new trial or the right of appeal. This, of course, the legislature could not do, and, if the term is extended for the purpose of finishing the trial, it must be further extended for the disposition of the motion for a new trial and the prayer for appeal. All this, we think, is comprehended within the language "disposing of the case" employed in the statute. The case of State v. Sneed is not controlling here for the reason there was no motion for new trial pending, or any record entry of any matter which was being considered by the court touching a pending case. The motion to dismiss the appeal is therefore overruled.

The gravamen of the action as laid in the declaration is that plaintiff's intestate, R. P. Simmons, at the time of his death, was in the employment of the telephone company in the capacity of a lineman, and was killed by coming in contact with a live wire of the street car company, attached to one of its poles, which Simmons had ascended for the purpose of making repairs for the telephone company. It is alleged that prior to that time the street car company and the telephone company had entered into a contract, parol or written, by which it was mutually agreed that either company might use the poles of the other in case of necessity or expediency. Again, it is alleged that the street railroad company, by permitting the telephone company to string its wires on the pole in question, made the latter company a licensee, whereby the street railroad company owed a duty to the telephone company and its employés to keep its wires attached to said poles properly insulated. Again, it is alleged that the street railroad company, in carrying on its business and maintaining its system of wires in a public thoroughfare, where the poles and wires of other electrical companies were maintained, owed a duty to the employés of the other electrical companies to keep its wires attached to said poles safely insulated. It is further charged that the defendant telephone company, by stringing one of its wires to said pole for the purpose of making a return circuit, made said pole part of its appliances and premises, and defendant telephone company, in not providing safe appliances, and inviting deceased to an unsafe and dangerous place to work, is liable. It is further charged that both companies knew, or ought to have known, that said wire was not insulated, and that it was charged with a deadly current of electricity. The facts disclosed in the record tend to show that the deceased at the time of the accident was in the service of the telephone company as lineman and inspector. His duties were of a general nature; that is to say, they were not specifically defined, but the deceased was expected to perform any duties in the line of telephone business that might be demanded of him. On the 17th of September, 1897, a street car had become derailed, and the trolley pole in some way came in contact with the guy wire attached to a pole of the car company, thereby turning the current of electricity from the trolley wire to the guy wire, and, pushing the guy wire up, caused it to come in contact with the lead cable incasing the telephone wires, and burning a hole in the cable. When the derailed car was placed back on the track, the original status quo was restored, and there was no further comnication between the trolley and guy wires. The telephone company was apprised of the accident, and directed the deceased to proceed to the place, and ascertain the cause of the trouble. The deceased, after an examination of the premises, and without special...