Lowry v. Southern Ry. Co.
Decision Date | 01 May 1907 |
Citation | 101 S.W. 1157,117 Tenn. 507 |
Parties | LOWRY v. SOUTHERN RY. CO. |
Court | Tennessee 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:
He also instructed the jury as follows:
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:
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 , 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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