Louisville & N. R. Co. v. Gower

• Decision Date: 23 February 1887
• Parties: LOUISVILLE & N. R. CO. v. GOWER.
• Court: Tennessee Supreme Court

3 S.W. 824

85 Tenn. 465

LOUISVILLE & N. R. CO. v. GOWER.

Supreme Court of Tennessee.

February 23, 1887

Appeal from circuit court, Davidson county.

SNODGRASS J.

Gower was a brakeman on a freight train of the Louisville & Nashville Railroad Company, and while in the discharge of one of his duties as such, that of coupling cars, was severely injured, and brought this action to recover damages for the injury sustained, in the circuit court of Davidson county. The injury occurred at Petersburg, Kentucky, on the night of April 5, 1880. About two miles from this point a car loaded with lumber had been taken into the train, and at Petersburg two flat cars were taken out of the train and left. These were put on the side track, and this necessitated the coupling of the lumber car with a box car. In making this coupling the accident to Gower occurred. It was his duty to make the coupling, and he did it without special order. He stood at the south end of the box car, signaled the engineer to back the lumber car to it, which was carefully done. When within a few feet of the box car, the plaintiff observed that the plank projected over the north end of the lumber car, the end to be coupled, and that it was necessary for him to stoop to avoid it in entering between the cars to make the coupling. He did enter in this way, and made the coupling while doing which, having some difficulty in getting the coupling pin into the draw-head, he raised his head, and was caught between the box car and the projecting lumber, and badly injured. These are the facts of the case as detailed by plaintiff as a witness on the trial before the jury. He obtained a verdict and judgment for $9,500, and the railroad company appealed. The commission of referees heard the case and reported in favor of reversal upon several grounds omitting others supposed by counsel of plaintiff in error to be objectionable, and both parties except to the report, and open the whole case for consideration by this court.

The first error necessary to be noticed is in the admission of evidence. The bill of exceptions shows that Dr. Hampton was the first witness introduced for plaintiff. He was asked if plaintiff had a family, and answered that he had a wife and children. The defendant "objected to the admission of any proof going to show that plaintiff had a family," stating ground of objection to be that plaintiff recovers, if at all, for the damages he has individually sustained, and not that sustained by his family, and that such evidence was irrelevant. The court replied: "I do not take that view of it, and I will allow the plaintiff to prove that he has a wife and children. But, if counsel for defendant desire to argue the question hereafter, I will hear them; and, if I conclude I am in error, I can then exclude it from the jury." To which action of the court defendant's counsel excepted. They did not again call it to the attention of the court. The commission of referees report this to be error, and counsel of Gower except. It is not seriously insisted, and, indeed, cannot be, that the evidence was relevant, but they interpose two objections to a reversal in consequence of it: First, that it is not material, and could have had no prejudicial effect; and, second, that the same evidence was admitted without objection when given by another witness.

In answer to the first objection it is clear that it was material when received under the opinion of the court. The counsel for the railroad company had put their objection upon the ground that the recovery was for the damages sustained by plaintiff individually, and not that sustained by his family. The court, by his reply, that "he did not take that view of it," and by his action admitting it, with such statement, to the jury, necessarily impressed them with the belief that the recovery would be affected by that evidence. It was equivalent to a charge that the loss to the family could be considered by them. It is well settled that no one else can recover in life than the one injured in cases of this character, and he only for the damages which he, and not others, has sustained. Under section 3130 of the Code providing that the right of action which a person who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrong-doer in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his widow, and, in case there is no widow, to his children, or to his personal representative, for the benefit of his widow or next of kin, free from the claims of creditors, it was at one time held by this court that the recovery might be, in such action, for the damages to the deceased, and the damages resulting from his death to the parties for whose benefit the right of action survives. Ra...