Louisville, Nashville & Great S. R.R. Co. v. Fleming

• Decision Date: 31 December 1884
• Citation: 82 Tenn. 128
• Parties: LOUISVILLE, NASHVILLE & GREAT SOUTHERN RAILROAD COMPANY v. SIMON FLEMING.
• Court: Tennessee Supreme Court

82 Tenn. 128

LOUISVILLE, NASHVILLE & GREAT SOUTHERN RAILROAD COMPANY

v.SIMON FLEMING.

Supreme Court of Tennessee.

December Term, 1884.

FROM WILLIAMSON.

Appeal in error from the Circuit Court of Williamson County. J. G. WALLACE, Sp. J.

ED. BAXTER, SMITH & ALLISON and JNO. H. HENDERSON for Railroad.

WM. HOUSE, BATE & WILLIAMS and H. H. COOK for Fleming.

COOPER, J., delivered the opinion of the court.

This is an action brought by Fleming against the railroad company to recover damages for an alleged wrongful ejection from the company's train of cars while traveling from the town of Franklin to the city of Nashville. The verdict and judgment below were in favor of Fleming, and the company appealed in error. The Referees have reported that the judgment should be reversed for an error in the charge of the trial judge to the jury. Both parties have filed exceptions, which open the whole case.

Fleming is a colored man, eighty-three years of age at the time of the occurrence, whose hands were partially paralyzed and numb so that he could not readily grasp any little thing, nor even feel it when between his fingers. He lived in Williamson county with his son, William Fleming, and had two daughters who resided in the State of Kansas. One of these daughters was on a visit to him, and he intended to return with her to Kansas. On January 2, 1879, this daughter took the plaintiff's clothes and money and went from Franklin to Nashville on an express wagon to purchase through tickets to Kansas for her father and herself. He was to follow on the night train of the railroad company, and meet her at the Louisville depot at Nashville. The plaintiff's son, William, took him to the depot of the company at Franklin, and bought a ticket for him to Nashville, which he put into the left hand pocket of his father's vest, telling him that the conductor on the train would call for it, and to let him have it. The son assisted his father to get on the train, telling the brakesman of the company, whose duty it was to see that those persons who entered the train had tickets, that his father had a ticket in his pocket. He placed his father in a seat, and gave him the instruction mentioned, that the conductor would call for his ticket before the cars had gone very far, and when he did to give it up to him. He then stepped back toward the door, and meeting the brakesman, pointed out his father to him, saying that he was old, feeble, and partially paralyzed, and was going to meet his daughter at the Louisville depot at Nashville; that he did not know one depot from another, and requesting the employe to see that he got off at the Louisville depot. The employe replied “all right.” Before the cars had gone far the conductor did call upon the plaintiff for his ticket, he says, and began to hunt for his ticket, and could not find it. He told the conductor his hands were paralyzed, and asked him to put his hand in his left vest pocket, designating the pocket by placing his own hand on it, and get it out for him. The conductor did put his fingers in the pocket, “flipped them along, just brushed them through like,” says the plaintiff, and told him he had no ticket. The plaintiff then said that his son had bought him a ticket, and put it in his vest pocket. There were several colored persons in the car, who had got on the train at Franklin, and knew the plaintiff well.

Two or three of these passengers spoke up, and said that they knew the plaintiff's son had bought a ticket as the plaintiff claimed, and put it in his father's pocket. The conductor testifies that he examined the pocket carefully and found no ticket, and then, with the aid of his lantern, searched the seat and the floor to see if the ticket had been dropped. The other testimony is in conflict as to this search. The conductor told the plaintiff that if he did not find the ticket by the time he came back, or pay him the fare from Franklin to Nashville, ninety-five cents, he would put him off at the next station. The plaintiff told the conductor that his daughter had his money at Nashville, and offered to pay him when he got to the depot where he expected to meet her. He also tried to borrow the money from his fellow passengers. A white passenger then told him that if he had paid for his ticket he could not be put off the cars. This quieted the plaintiff, and he did nothing further. He did not even request any of his fellow townsmen to examine his pocket in search for the ticket. The conductor, after going through the train taking up the tickets, returned to the plaintiff, who was unable to produce a ticket or the money. The conductor then instructed the brakesman to put the plaintiff off at the next station, which he did, the plaintiff offering no resistance, but going off quietly. He, himself, testifies that the conductor and brakesman did not speak to him harshly, and that he was not roughly handled when put off the train.

The plaintiff was put off at Brentwood, a station half way between Franklin and Nashville, being about nine miles from each place. It is a small town of thirty or forty houses, many of them occupied by colored persons, with a depot house near the road. It contained no public house or livery stable. He was put off about 8 o'clock at night. It was a very cold night, with snow on the ground, and sleeting or snowing at intervals. The plaintiff made no effort to obtain shelter for the night at Brentwood, either from the depot agent or any of the citizens. By the persuasion of another negro, who also got off the cars at Brentwood because he had no money to pay his fare any further, the plaintiff was induced to go with him on foot to Nashville at once. They reached Nashville between eleven and twelve o'clock at night, the plaintiff suffering much from cold and the exertion. On the next morning, the plaintiff's daughter either found the ticket in the father's left vest pocket, as he testifies, or in some other part of his clothing. She says: “I put my hand in his pocket and the first thing I felt was the ticket.” They went to the office of the company, and upon presenting the ticket were paid fifty cents for it. The plaintiff went on that day to Kansas, where he remained several months before returning home. There is testimony tending to show that the plaintiff had hernia on one side before the occurrence, and has since been afflicted with hernia on both sides, and with hydrocele.

The trial judge, from the burden of his charge, was of opinion that the jury might find that the plaintiff was entitled to exemplary as well as compensatory damages. And in view of the settled law of this State he charged that if the defendant was guilty of a wrong, by which the plaintiff was injured, and plaintiff was also in some degree negligent, or contributed to the injury, it should go in mitigation of damages. He then added: “But the doctrine of contributive negligence has no application to an action for an intentional tort of willful neglect, or actual wrongful act of the defendant. If it were a reckless or wanton act of the carrier in expelling the plaintiff from the train, the carrier can claim no protection from contributory negligence even in mitigation of damages.” This was the part of the charge which the Referees have reported to be erroneous.

The intrinsic difficulty of the subject of contributory negligence has led to three distinct lines of decisions. In England and a majority of the States of the Union, the negligence of the plaintiff which contributes to the injury is held to be an absolute bar to the action. In the States of Illinois and Georgia the doctrine of comparative negligence has been adopted, that is, if on comparing the negligence of the plaintiff with that of the defendant, the former is found to be slight and the latter gross, the plaintiff may recover. In this State we hold that although the injured party may contribute to the injury by his own carelessness or wrongful conduct, yet if the act or negligence of the party inflicting the injury was the proximate cause of the injury, the latter will be liable in damages, the negligence or wrongful conduct of the party injured being taken into consideration, by way of mitigation, in estimating the damages. In other words, if defendant was guilty of a wrong by which plaintiff is injured, and plaintiff was also in some degree negligent or contributed to the injury, it should go in mitigation of damages, but cannot justify or excuse the wrong: East Tennessee, Virginia & Georgia Railroad Company v. Fain, 12 Lea, 35. At the same time we hold that if a party by his own gross negligence bring an injury upon himself, or proximately contribute to such injury, he cannot recover; neither can he recover in cases of mutual negligence where both parties are equally blamable: Id. The principal difference between our rule and the English rule, as modified by the more recent decisions, is in allowing the damages to be mitigated by the conduct of the injured party. In this respect our rule meets the objection which Mr. Thompson, in his notes on contributory negligence, makes to the construction put by some of the courts on the English rule, or to the application of the rule in particular cases. “It is,” he says, “nothing more than a declaration that although both parties have been guilty of negligence contributing to the injury, the party who suffered the damage is to be completely exonerated, and the other party is not to be exonerated to any extent; the former is to recover of the latter without any abatement on account of his own share of the fault, all the damages which he has suffered. This is, he adds, “manifest injustice; and yet it is practiced every day in the courts of England and in those of nearly every State in the Union”: 2 Thomp. on Neg., 1155. Our rule, moreover, is merely an adaptation of the law which prevails in civil actions for assault and battery, where the conduct of the plaintiff in the way of...