Knoxville Traction Co. v. Brown

• Decision Date: 28 October 1905
• Parties: KNOXVILLE TRACTION CO. v. BROWN et ux.
• Court: Tennessee Supreme Court

89 S.W. 319

115 Tenn. 323

KNOXVILLE TRACTION CO. v. BROWN et ux.

Supreme Court of Tennessee.

October 28, 1905

Appeal from Circuit Court, Knox County, Joseph W. Sneed, Judge.

Action by J. C. Brown and wife against the Knoxville Traction Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Shields Cates & Mountcastle, for appellant Sansom & Welcker and E. F Mynatt, for appellees.

WILKES J.

This is an action for damages for personal injuries inflicted upon Mrs. M. J. Brown, wife of J. C. Brown. The suit is brought in the name of the husband and wife, and is based upon an injury done to the wife.

There was a motion for peremptory instructions in favor of the defendant at the conclusion of the plaintiff's testimony and also at the conclusion of all the evidence, to return a verdict in favor of the defendant. These motions were overruled by the court, and there was a trial before the judge and a jury, and a verdict and judgment in favor of the plaintiff for $2,000, and the defendant company has appealed.

The first contention made is that there is no material evidence to support the verdict, and, if there may be some proof of negligence on the part of the company, still there is evidence of contributory negligence on the part of the plaintiff, which directly contributed to cause the injury, and must bar any recovery, and hence that the court was in error in not granting peremptory instructions to the jury to award a verdict in favor of the plaintiff.

The two vital questions in this case are: First, whether there was any negligence on the part of the motorman of the street car company which caused the accident; and, second, whether there was any negligence on the part of the plaintiff Mrs. Brown which directly contributed to cause the accident.

The facts in the case are that the plaintiff Mrs. Brown was attempting to cross Gay street, in Knoxville, from the west to the east side. The street has a double track upon it, and cars pass in each direction quite frequently. Those going north pass on the eastern track, and those going south on the western track, and the two lines of track are near each other.

The plaintiff, when she attempted to cross the street, looked in both directions, and saw that cars were coming from both the north and south. She believed, however, that she had time to cross over the tracks before the cars would reach the point where she was crossing. She started across the street diagonally in a northerly direction, and before she reached the west track she was intercepted by a coal or furniture wagon, which checked her and caused her to vary her course up the street at a sharper angle in order to pass behind it. The wagon was going in a southerly direction, and as she passed behind it, and was about to enter upon the east track, the car coming on that track from the south made its appearance very near her. She was from 5 to 15 feet in front of the car when she was discovered by the motorman and when she discovered the near approach of the car. The motorman attempted to stop the car, but was unable to do so. He cried to her, "Look out, lady!" and she made a leap and got nearly across the east track, when the corner of the car struck her, turning her around, and throwing her to the pavement.

While the testimony is that she looked in both directions before going on the street, and saw the car coming from the south which caused the injury, there is no testimony to show that, after crossing the west track and being checked and deflected in her course by the wagon, she looked again south for the approach of the car from that direction before entering upon the eastern track.

We think there is testimony in the record to show that the motorman on the car which caused the accident was immediately before the accident, and perhaps at the time of it, looking at the wagon or its driver, under the impression that there was danger of striking the wagon, and that he was not at the time of passing the wagon looking along the track to see whether any one was upon it or not.

We think the evidence shows that she was attempting to cross the track under dangerous and critical circumstances; and, if so, it was her duty to watch very closely for the movement of the cars, which she knew were coming in both directions, and more especially as she was checked in her progress by the intervening wagon.

We think that under the evidence there might have been a difference of opinion as to whether the motorman was guilty of negligence in watching the wagon, instead of the track ahead of him, and also that there might have been a difference of opinion as to whether the lady should not, under the circumstances, being checked in her passage, have stopped before entering upon the east track to see whether she could cross that track before the car which she had seen coming would reach her.

These questions of negligence upon the part of the motorman and contributory negligence upon the part of the plaintiff should have been left to the jury, under proper instructions; and it was not, therefore, a case for peremptory instructions.

A motion for peremptory instructions is not one which addresses itself to the discretion of the court, but one which presents a question of law; and the crucial question in the case is whether there is any determinative evidence upon which the jury must base a verdict in favor of the party who produces it.

It is said in the case of Grand Trunk Railroad Company v. Ives, 144 U.S. 417, 12 S.Ct. 679, 36 L.Ed. 485, that the terms "ordinary care" and "reasonable prudence" and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and say whether the conduct of the parties in that case is such as would be expected of reasonably prudent men under a similar state of affairs. When a given state of facts is such as reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusions from them that the question of negligence is ever considered one of law for the court.

To support this proposition, a large number of cases are cited.

Substantially the same rule is laid down in District of Columbia v Moulton, 182 U.S. 577, 21 S.Ct. 840, 45 L.Ed. 1237, in these words: "The question of negligence or...