Lowry v. Southern Ry. Co.

Decision Date01 May 1907
Citation101 S.W. 1157,117 Tenn. 507
CourtTennessee Supreme Court

Appeal from Circuit Court, McMinn County; George L. Burke, Judge.

Action by Sarah E. Lowry, administratrix, against the Southern Railway Company. From a judgment for less than prayed plaintiff appeals. Affirmed.

George G. Williams, for appellant.

Burkett Miller & Mansfield, for appellee.


This case has been tried many times in the court below and three times in this court. There was a verdict and judgment at the December term, 1905, in the circuit court of McMinn county, and a decree of $900 in favor of plaintiff. There was an appeal by the plaintiff to this court, because the amount allowed was not sufficient, and errors have been assigned on various grounds. There are 11 assignments of error. All of these but the last are upon the charge of the court.

Assignments 1 to 6, inclusive, refer to and complain of the charge as given; and Nos. 8, 9, and 10 refer to requests refused.

The action was brought to recover damages for the death of a boy nine years old, who was struck and killed by the engine of the defendant company as he was crossing the track in front of the engine.

In those portions of the charge to which no exceptions were taken, the trial judge instructed the jury as follows:

"This is a suit for damages, brought by the plaintiff, Sarah J. Lowry, administratrix of her son, against the defendant, Southern Railway Company, for the wrongful killing of her son, Charles Lowry. That deceased was killed as alleged by the defendant company is not denied. The question of liability for the said killing has been formerly adjudicated in this cause, and the defendant company held to be liable. You have been chosen and qualified to ascertain and fix the amount of damages for the said wrongful killing, and this you can fix at any amount warranted by the evidence and the law governing in the case, not exceeding the amount laid in the declaration, to wit, $1,999.99. The right to recover in this action is predicated upon the alleged negligence of the defendant company as causing the accident that resulted in the death of plaintiff's intestate, and, as aforesaid, it has been held and adjudged by a superior court in this case that the negligence of the defendant was such as to make the defendant liable in this case, but the amount of damages has not been adjudicated; but that is a matter you have been sworn to ascertain and fix, and which you must do under the evidence and law governing in the case, as charged you by the court.

The rule of law is that where, in a case of this character, the negligence of the defendant was the prime and proximate cause of the injury, or the defendant fails to observe some statutory requirement, as hereinafter explained, its liability is fixed; but it is the duty of the jury to look to the record to ascertain whether the injured party was negligent, and, if he were negligent, such negligence goes in mitigation of the damages, and the extent of such mitigation should be governed by the extent of the negligence of the party injured--that is, in proportion to the extent such negligence contributed to the injury."

He also instructed the jury as follows:

"The true measure of damages would be the value of the life of the deceased, upon a consideration of his expectancy of life, looking to his age, health, strength, and to his capacity for labor and earning money by labor, skill in any art, trade, profession, occupation, or business, considering the fact that 'expectancy of life' is at the most problematical. You may, in fixing the damages, likewise look to any physical and mental pain suffered by the deceased and any expense incurred in consequence of the injury."

In the matter objected to, covered by assignments 1 to 6, inclusive, his honor told the jury that the railroad company must comply with the statutory precautions, mentioning them, such as keeping a lookout, having a headlight, and taking every precaution to prevent an accident; also the duty to blow the whistle at a distance of a mile from the corporate limits. He then told them that a failure to comply would make the liability absolute, notwithstanding the negligence of the party injured was so gross as to be the prime and proximate cause of the injury, and notwithstanding the fact that, had the statutory precautions been observed, the accident could not have been avoided.

He then continued:

"But in such cases, where the negligence of the party injured was so gross as to be the prime and proximate cause of the injury, such negligence would mitigate the damages to that of mere nominal damages and a sum sufficient to cover the costs, as $1, for instance."

The charge then continued:

"Whether the defendant was observing the statutory precautions on this occasion is a question for you to settle under the evidence, as well as whether, if not observed, such negligence caused the accident, as well as whether, had they been observed, the accident could have been avoided."

He charged that all the precautions must be observed; but if they were not observed, and such failure did not contribute to the injury, but that, notwithstanding such failure to observe each and every one of these precautions, the accident would not and could not have been avoided--that is to say, was the result of the gross negligence of the deceased, and, on the part of the defendant, was an unforeseen and unforeseeable and unavoidable accident--the defendant would only be liable for nominal damages."

He also charged:

"On the contrary, if you find the statutory precautions were not observed, and such failure was the prime and proximate cause of the injury, the defendant would be liable for a greater amount than mere nominal damages, and the deceased's negligence would go only to the mitigation of the damages, and the extent of the mitigation should depend upon the extent of the negligence chargeable to the deceased on the occasion and under the surrounding circumstances."

The trial judge committed error in leaving it to the jury to say whether the statutory precautions had been complied with. That matter was settled by the court on a former trial in disposing of the demurrer to the evidence. For the rest, the substance of the instructions was that if failure to comply with the statutory precautions was not the proximate cause of the injury, but the gross negligence of the deceased was such cause, then there could only be recovered nominal damages; but, if failure to comply with such precautions was the proximate cause, then the company would be liable for a greater amount than nominal damages.

The tenth assignment complained of the refusal to charge the following request upon the subject of punitive damages:

"You may allow punitive or exemplary damages, if you believe from all the facts and circumstances that defendant was guilty of gross negligence or acted in reckless disregard of the safety of the child."

As already said, we think the trial judge committed error in submitting to the jury the question whether the statutory precautions had been complied with. It may also be conceded that there was technical error in what was said upon the subject of nominal damages; also in refusing to grant the request for instructions upon the subject of punitive damages. After making these concessions, the question is, were they reversible errors, as having wrought harm to the plaintiff's cause; or were they, under the facts shown in the record, merely innocuous?

The rule is that, although this court may be of opinion in a given case that the trial judge committed error in his charge, no reversal will be granted therefor, if we can see that the party complaining of such error was not injured thereby. This rule is supported by a long line of cases ( Neddy v. State, 8 Yerg. 249; Webster v. Fleming, 2 Humph. 518; Porter v. Woods, 3 Humph. 56, 39 Am. Dec. 153; Mitchell v. Churchman's Lessee, 4 Humph. 218; Rosson v. Hancock, 3 Sneed, 435; Steinwehr v. State, 5 Sneed, 586; Mt. Olivet Cemetery Co. v. Shubert, 2 Head, 116; Myers v. Bank, 3 Head, 331; Davidson v. Manlove, 2 Cold. 346, 348; Hatfield v. Griffith, 1 Lea, 300; Malone v. Searight, 8 Lea, 91; Jones & Son v. Cherokee Iron Co., 14 Lea, 157; Southern Oil Works v. Bickford, 14 Lea, 651; Transportation Co. v. Block Bros., 86 Tenn. 393, 6 S.W. 881, 6 Am. St. Rep. 847; Dale v. Continental Insurance Co., 95 Tenn. 38, 52, 31 S.W. 266; Oliver v. Nashville, 106 Tenn. 273, 278, 281, 61 S.W. 89), and it is but a restatement in other language of the provision contained in Shannon's Code, § 6351, which reads as follows: "No judgment, decision or decree of the inferior court shall be reversed in the Supreme Court unless for errors which affect the merits of the judgment, decision or decree complained of."

Other applications of the same principle are found in the following cases, viz: Wilson v. Smith, 5 Yerg. 381, 409; Clark v. Rhodes' Adm'r, 2 Heisk. 208; Sellers v. Sellers, 2 Heisk. 431; Robb v Parker, 4 Heisk. 58, 66; Draper v. State, 4 Baxt. 254; Maddin v. Head, 1 Lea, 664; Davis v. Davis, 6 Lea, 543; McAdams v. State, 8 Lea, 463; Robinson v. Baker, 10 Lea, 402, 405; Memphis Tel. Co. v. Hunt, 16 Lea, 460, 1 S.W. 159, 57 Am. Rep. 237; Turner v. State, 89 Tenn. 549, 561, 562, 15 S.W. 838. And for still other and different applications of the same principle, see Allen & Hill v. Shanks, 90 Tenn. 383, 384, 16 S.W. 715, approving Boyd v. Sims, 87 Tenn. 771, 11 S.W. 948; Minton v. Stahlman, 96 Tenn. 106, 34 S.W. 222; Telegraph Co. v. Mellon, 100 Tenn. 430, 45 S.W. 443; Glenn & Sons v. Southern Express Co., 86 Tenn. 594, 8 S.W. 152; Watkins v. Clifton Hill Land Co., 91 Tenn. 684, 20 S.W. 246; Jonas v. Noel, 98...

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8 cases
  • Allen v. Melton
    • United States
    • Tennessee Court of Appeals
    • March 14, 1936
    ... ... circuit judge upon questions of fact arising on the hearing ... of the motion. Ransom v. State, 116 Tenn. 355, 366, ... 96 S.W. 953; Lowry v. Southern Railroad Co., 117 ... Tenn. 507, 523, 101 S.W. 1157; Eatherly v. State, ... 118 Tenn. 371, 101 S.W. 187; Odeneal v. State, 128 ... ...
  • Cooper v. State
    • United States
    • Tennessee Supreme Court
    • June 28, 1911
    ... ... guidance in the Code, and in numerous decisions of this ... court, and of other courts many of which are referred to in ... the case of Lowry v. Railroad, 117 Tenn. 507 et seq ... 101 S.W. 1157. But in the present case the further reason ... appears that the trial judge instructed the ... and in the meantime, Robin, going southwards still, got ... around the lower side of the southern post, and then for ... the first time I saw his weapon firing ...          "Q ... At the time Senator Carmack shot Robin, or before ... ...
  • Garis v. Eberling
    • United States
    • Tennessee Court of Appeals
    • January 25, 1934
    ... ...          On May ... 6, 1932, and for some time theretofore, plaintiff and ... defendant were next-door neighbors on the southern side of ... Bellwood avenue, or Bellwood drive, in the suburbs of the ... city of Nashville ...          Plaintiff ... was an ... Continental Insurance ... Co., 95 Tenn. 38, 52, 31 S.W. 266; Oliver v ... Nashville, 106 Tenn. 273, 281, 61 S.W. 89; Lowry v ... Railroad Co., 117 Tenn. 507, 514, 101 S.W. 1157, 6 L. R ... A. (N. S.) 887, 119 Am. St. Rep. 994. The eighth assignment ... of error is ... ...
  • Brown v. Barber
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    • Tennessee Court of Appeals
    • February 26, 1943
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