Louisville & N.R. Co. v. Cantrell
Decision Date | 16 February 1942 |
Citation | 160 S.W.2d 444,25 Tenn.App. 529 |
Parties | LOUISVILLE & N. R. CO. v. CANTRELL et al. |
Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court April 4, 1942.
Appeal in Error from Circuit Court, Davidson County; Richard P Dews, Judge.
Suit by Will C. Cantrell and another against the Louisville & Nashville Railroad Company for death of Helen Otelia Cantrell. To review a judgment on a verdict for plaintiffs defendant appeals in error.
Reversed and suit dismissed.
Seay Stockell & Edwards, of Nashville, for plaintiff in error.
Norman Farrell, W. L. Schram, and John T. Allen, all of Nashville, for defendants in error.
This suit was brought by Will C. Cantrell and by Frank Cantrell, a minor by his next friend Steve Taylor, for damages for the death of their wife and mother respectively, a colored woman named Helen Otelia Cantrell, about twenty-three years of age, who was killed on June 22, 1940, by a freight train of the defendant Louisville & Nashville Railroad Company on the right of way of the railroad at a point near Pilot Knob, Tennessee.
The declaration alleged that the servants and agents of the defendant negligently and wrongfully ran the locomotive and train over Otelia Cantrell and killed her; that the defendant, and its agents and servants, failed to ring the bell or sound the whistle or keep a lookout ahead and when the deceased Otelia Cantrell appeared on the track they failed to sound the alarm whistle or any other whistle and failed to apply the brakes or use other means to stop the train and prevent the accident.
The defendant first interposed two pleas, one of not guilty and the other a plea of accord and satisfaction. The plaintiffs demurred to the second plea and this demurrer was sustained by the trial Judge. The defendant then filed additional pleas in which it denied that the injuries were caused by its negligence and that it had failed to perform its statutory duties as alleged in the declaration. It pleaded further and averred that the proximate cause of the accident was the negligence of the deceased in suddenly placing her person on the defendant's track in front of the train and that her injuries and death resulted from her own wilful conduct in intentionally and suddenly placing her person upon its track immediately in front of its train.
At the close of all the testimony the defendant moved the Court for a directed verdict in its favor and its motion was overruled.
The case was tried by the Circuit Judge and a jury on June 11, 1941, and resulted in a verdict for the plaintiffs for $5,000.
Upon the motion for a new trial the Circuit Judge overruled the motion and suggested a remittitur of $1,000. This was accepted under protest and a judgment was entered for $4,000 against the defendant.
The defendant has properly perfected its appeal in error to this Court and has assigned errors as follows:
The first assignment of error questions the action of the trial Court in sustaining plaintiffs' demurrer to the pleas of accord and satisfaction. After the death of Otelia Cantrell, Clarence Malone, a resident of Sumner County, Tennessee, qualified as administrator upon her estate and on August 7, 1940, the defendant company paid him as such administrator $260.65 and this amount was accepted by him "in full compromise, settlement, discharge and satisfaction of all claims, damages, or causes of action of every character whatsoever, which said Administrator or the estate of Helen O. Cantrell had as a result of the injuries to and loss of life, and damage to the property of said Helen O. Cantrell, deceased, who was fatally injured at or near Pilot Knob, Tennessee, on the 22nd day of June, 1940."
Section 8236 of the Code of Tennessee is as follows: " Right of action for wrongful injuries resulting in death or for wrongful killing does not abate, but passes to whom.--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 wrongdoer, 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 next of kin; or to his personal representative, for the benefit of his widow or next of kin, in either case free from the claims of creditors."
Section 8239 is as follows: " Suit in name of husband or administrator of deceased wife.--A suit for the wrongful killing of the wife may be brought in the name of the husband for the benefit of himself and the children of the wife, or in the name of administrator of the deceased wife, or in the name of the next of kin of the wife." Section 8241 of the Code is as follows:
In the case of Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246, a settlement made with an administrator was set aside and the legal father of a child permitted to intervene, and special Justice Alan M. Prewitt in his opinion on pages 642 and 643 of 177 Tenn., on page 248 of 152 S.W.2d, said:
In the case of Spitzer v. Knoxville Iron Co., 133 Tenn 217, on page 220, 180 S.W. 163, on page 164, it is said: ...
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