Memphis St. Ry. Co. v. Haynes

• Citation: 81 S.W. 374
• Parties: MEMPHIS ST. RY. CO. v. HAYNES.
• Decision Date: 23 May 1904
• Court: Supreme Court of Tennessee

81 S.W. 374

MEMPHIS ST. RY. CO. v. HAYNES.

Supreme Court of Tennessee.

May 23, 1904.

Error to Circuit Court, Shelby County; J. T. Young, Judge.

Action by J. J. Haynes against the Memphis Street Railway Company. From a judgment in favor of plaintiff, defendant brings error. Reversed.

Wright, Peters & Wright, for plaintiff in error. Johnston & Hirsh, for defendant in error.

NEIL, J.

This action was brought in the circuit court of Shelby county to recover damages for an injury inflicted upon the defendant in error by a collision between one of the plaintiff in error's cars and a wagon on which the defendant in error was at the time riding. The jury rendered a verdict for $1,100 damages, judgment was rendered thereon, and the railway company thereupon appealed and assigned errors.

1. The first error assigned is based upon the following instructions, which his honor gave to the jury as a part of his charge:

"The court now instructs you that negligence may generally be defined as the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff (without negligence on his part proximately contributing to produce the accident) has suffered injury to his person."

Objection is made to the matter appearing in parentheses. This matter was improperly inserted, but we do not think the error is grave enough to warrant a reversal; certainly not upon plaintiff in error's application. If any injury was done, it was to the defendant in error, since the jury were told, in substance, that, as a condition of finding negligence against the plaintiff in error, they must also find that the defendant in error was without negligence on his part proximately contributing to produce the accident. Burke v. Citizens' St. Ry. Co., 102 Tenn. 409, 52 S. W. 170.

This assignment of error must be overruled.

2. The second assignment of error is based upon the following instructions:

"Though the act of a person in crossing or driving alongside the track in front of a street railway car which is moving towards him, near enough to be struck, may be negligence, yet, if the motorman in charge of the car observes the negligence, or could have observed the negligence, by the use of ordinary care, when the peril of a collision became imminent, and might have avoided its effect, by due care, in time to prevent an accident, and failed to do so, the company would in that event be liable."

There was no error in this instruction, and the assignment is overruled.

3. The third assignment raises an objection to the following instruction:

"The court further instructs you that there is an ordinance of the city of Memphis, a violation of which is a misdemeanor, which provides as follows:

"Article 39, § 5: `Conductors and drivers of each car shall keep a rigid lookout for all teams, carriages, and persons, on foot, and especially children, either on the track, or moving towards it, and on the first appearance of danger to such team or person, or other obstructions, the car shall be stopped in the shortest time and space possible.'

"Also another section, namely:

"Article 39, § 25: `At no point within the city limits shall they [meaning the street cars] run at a greater speed than 15 miles per hour.'

"The court instructs you that a failure to comply with the city ordinances above quoted, within the city limits, is negligence per se, and will render the railway company liable, if its negligence was the proximate cause of the accident and injury."

The facts applicable to this instruction are as follows:

There was testimony tending to show that the defendant in error and two other men were all sitting on the front seat of a covered wagon, which was proceeding along McLemore avenue, in the city of Memphis, near the southwest corner of Magnolia Park, very near to the track of the railway company — near enough to be struck by a moving car; that while in such situation a car ran up behind the wagon, struck it, and threw defendant in error to the ground, severely injuring him; that the wagon could have been seen for a long distance ahead — about 300 yards — and the motorman could have stopped the car if he had begun to do so in time, but that he was propelling it or allowing it to run down grade at a speed of 20 miles per hour, and did not begin to check its speed until it was too late to avoid a collision; that he attempted to stop the car, when it was within a few feet of the wagon, by reversing the current, but it was then too late to prevent the accident.

The first point made against the instruction contained in the foregoing assignment is that the violation of a city ordinance is not negligence per se, as charged by the court.

In the case of Queen v. Dayton Coal & Iron Co., 95 Tenn. 458, 32 S. W. 460, 30 L. R. A. 82, 49 Am. St. Rep. 935, it was held that the employment of an infant in a mine in violation of the statute forbidding such employment, and declaring it a misdemeanor, constituted per se such negligence as rendered the employer liable for all injuries sustained by the infant in the course of the employment.

In Riden v. Grimm Bros., 97 Tenn. 220, 36 S. W. 1097, 35 L. R. A. 587, it was held that the sale of intoxicating liquors to an habitual drunkard, after notice from the latter's wife forbidding it, in violation of Acts 1889, c. 68, making such sale a misdemeanor, was per se such negligence as rendered the seller liable to the wife for the death of the husband, or other injury resulting to her from such sale.

In Schmalzried v. White, 97 Tenn. 36, 36 S. W. 393, 32 L. R. A. 782, the court had under consideration the question whether the violation of a city ordinance would impose the same liability as the violation of a statute. The ordinance under examination there concerned the erection of fire escapes on buildings.

In that case the court used the following language:

"It is insisted that the ordinance of 1890 imposed no duty upon the owners of this building, for a breach of which a civil action can be maintained by one sustaining an injury for such breach, and that therefore the trial judge was in error in letting this go to the jury. It is conceded that for a violation of a general statute a civil action will lie at the instance of a party injured thereby. Queen v. Dayton, etc., Co., 95 Tenn. 458 [32 S. W. 460, 30 L. R. A. 82, 49 Am. St. Rep. 935]. But it is insisted that this is not true with regard to a violation of a municipal ordinance. An examination of the authorities will show much diversity of judicial opinion on this question. The cases of Bott v. Pratt, 33 Minn. 323 53 Am. Rep. 47, Osborne v. McMasters, 40 Minn. 103 , 12 Am. St. Rep. 698, Hayes v. Mich. Central R. R., 111 U. S. 228 [4 Sup. Ct. 369, 28 L. Ed. 410], and Salisbury v. Herchenroder, 106 Mass. 458, 8 Am. Rep. 354, hold that for the violation of a municipal ordinance an action can be maintained by a private individual injured thereby. The cases of Philadelphia R. R. v. Ervin, 89 Pa. 71, 33 Am. Rep. 726, Flynn v. Canton Co., 40 Md. 312, 17 Am. Rep. 603, Heeney v. Sprague, 11 R. I. 456, 23 Am. Rep. 502, and Vandyke v. City of Cincinnati, 1 Disn. (Ohio) 532, take the contrary view."

The court, however, did not decide the question, but pretermitted the decision, on the ground that the case did not call for it, because of the existence of certain special facts which were determinative.

In Weeks v. McNulty, 101 Tenn. 495, 48 S. W. 809, 43 L. R. A. 185, 70 Am. St. Rep. 693, the court again referred to the question, citing and discussing authorities upon both sides of it, and intimating an opinion in favor of the liability, but did not find it necessary to render an authoritative decision upon the point.

At the April term, 1903, of this court, at this place, in the case of Memphis St. Railway Company v. John Williford (no opinion filed), error was assigned upon the charge of the circuit judge, substantially the same as that now complained of. Indeed, the same city ordinances which are copied into the third assignment supra were involved in that case, and were the subjects of the charge of the circuit judge there.

The court held, in an oral opinion delivered by Mr. Justice Shields, that the same rule laid down in Queen v. Dayton Coal & Iron Company, supra, in respect of statutes, also applied to city ordinances.

We have again examined the question, but deem it unnecessary to go into an extended discussion of it. To what has already been said in our cases we shall only add that we are unable to find any convincing force in the suggestion, occurring in many of the cases, that a distinction should be made between statutes and ordinances, in respect of the question referred to, on the ground that the former can create a cause of action between private individuals, or a civil cause of action in any sense, and the latter cannot. If an ordinance be passed for the protection of the individuals composing the public, as distinguished from the municipality itself, and be within the legislative power of the corporation, and any member of the public suffer an injury peculiar to himself by reason of the violation of such ordinance by some other person, it is difficult to see why, on any sound theory, he may not have an action therefor against the offender. Such ordinances are devised for the purpose of creating rules of conduct for the guidance of the people, just as statutes are, and they may be said to emanate ultimately from the Legislature, since municipalities, in this state, at least, can exercise no powers which are not expressly or by implication conferred upon them by that body.

The next point made under this assignment applies only to the first ordinance quoted.

It is insisted that this ordinance is unreasonable; that it requires that the employés of the company shall use perfect judgment, perfect skill, and that the cars of the company shall be perfect in...