Louisville & N. R. Co. v. Blair

• Decision Date: 27 January 1900
• Citation: 55 S.W. 154,104 Tenn. 212
• Parties: LOUISVILLE & N. R. CO. v. BLAIR.
• Court: Tennessee Supreme Court

55 S.W. 154

104 Tenn. 212

LOUISVILLE & N. R. CO. v. BLAIR.

Supreme Court of Tennessee.

January 27, 1900

Appeal from circuit court, Davidson county; J. W. Bonner, Judge.

Action by J. M. Blair against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Smith & Maddin, for appellant.

J. L Watts and J. B. Daniel, for appellee.

WILKES J.

This is an action for damages for ejecting the plaintiff from the train of the defendant company. There was a trial before the court and a jury, and a verdict for $800, $400 of which was remitted, and for the balance judgment was rendered, and the railroad company has appealed.

It is insisted that this verdict cannot be disturbed, because two verdicts have been already set aside, and, under Shannon's Code, § 4850, a third verdict cannot be set aside upon the facts. We are of opinion the second verdict in this case was not set aside upon the facts, but upon surprise on part of defendant over the introduction of the evidence of the witness Pirtle by the plaintiff. The provisions of the section referred to are not, therefore, applicable.

It is a little difficult to know exactly what assignments of error are before this court except two; one that there is no evidence to support the verdict, and the other that the damages are excessive. These assignments present perhaps all that is meritorious in the case. The second and third assignments originally made appear to have been withdrawn in a later assignment, which substitutes for them a different statement and assignment. But it appears that this latter assignment was not embraced in the motion for a new trial in the court below. There is a rule of that court, which is copied into the record, which requires the grounds of complaint to be set out on the motion for a new trial. It has been held by this court that, where such a rule exists, and is shown in the record, as it is here, no errors will be considered in this court that were not set out in the motion for a new trial in the court below. There was no complaint of the charge of the court upon the motion for a new trial, and hence none can be entertained here. There was complaint that a certain special request was not given, and error was originally assigned upon this ground, but this was withdrawn by the amended or subsequent assignment, and is not, therefore, for our consideration. If it were, we are of opinion it was not error to refuse the request as made. We proceed, therefore, to examine the case under the two assignments referred to of no evidence to support the verdict, and the amount of damages being excessive. The plaintiff in this case bought the return part of a Centennial ticket from Nashville to Guthrie, Ky. It was required to be stamped to be...