Memphis St. Ry. Co. v. Kartright

• Decision Date: 23 May 1903
• Citation: 75 S.W. 719
• Parties: MEMPHIS ST. RY. CO. v. KARTRIGHT.
• Court: Tennessee Supreme Court

75 S.W. 719

MEMPHIS ST. RY. CO. v. KARTRIGHT.

Supreme Court of Tennessee.

May 23, 1903.

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

Action by William Kartright, by his next friend, against the Memphis Street Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Wright, Peters & Wright, for plaintiff in error. Jerre Horne and M. C. Ketchum, for defendant in error.

WILKES, J.

This is an action for damages for personal injuries. It was tried in the court below by a jury, and there were a verdict and judgment for $250, and the railway company has appealed and assigned errors.

The facts, so far as necessary to be stated, are that plaintiff, a young man, about 20 years of age, was standing on the pavement at the corner of Rayburn and Vance streets, in the city of Memphis. A car of the defendant company was approaching on the street, when the trolley wire, forming part of its overhead construction, with an insulator upon its end, fell, and the insulator struck the plaintiff upon the head, inflicting a wound over his right eye, which left a permanent scar or blemish on his face. He was confined to his bed for several days, and was not able to work for some 10 days, and incurred a medical bill of $25. It is not definitely shown what caused the breakage and fall of the trolley wire, but the plaintiff states that the trolley pole knocked the wire down; that he saw it fly off and knock the wire down.

It is assigned as error that there is no evidence to sustain the verdict. This assignment is based upon the theory that there is no definite testimony as to why the wire broke, and no evidence of negligent construction, maintenance, and operation of the line, while there is testimony that the wire was in good condition, and had been inspected two days before; that at the time there was a break in the wire near the same place which was repaired, and the wire was then found to be in proper condition. The rule, as laid down in the case of Chattanooga Ry. Co. v. Mingle, 103 Tenn. 667, 56 S. W. 23, 76 Am. St. Rep. 703, is that "negligence on the part of the street car company in the selection, construction, or supervision of its guy wire is presumed, without further evidence, from the fact that such wire, dangerously charged with electricity, falls on or near a public street, even if its fall was caused by a stroke from the deranged trolley of a passing car." This presumption of negligence must be overcome by the car company. The evidence introduced by the company consisted of the testimony of Bowen, the lineman; Erickson, the foreman of the repair apparatus, called the "Trouble Wagon"; and a negro, Branch, a member of his crew. The testimony of these witnesses is quite contradictory, though they speak, in general terms, quite emphatically as to the quality of the wire, its condition, and frequent inspection. They are more or less interested, as employés whose duties were to make repairs and keep the line in order. On the other hand, the testimony of the plaintiff furnishes some evidence that the breakage was caused by the slipping of the trolley pole, which is not explained; and the jury, from his statement, might have legitimately inferred that there was negligence in the slipping of the pole, or a defect in the condition of the wire, and, under the rule, this is sufficient testimony, coupled with the presumption, arising out of the breakage, that there was negligence.

The other assignments of error may be treated together, and relate to the degree of care required to be exercised by electric street railways in the construction, maintenance, and operation of its superstructure.

The court charged the jury that the street car company was obligated to use the best material, most approved methods of construction, and the highest degree of care and skill in maintaining and keeping same in repair, considering the dangerous nature of the appliances, and the peril to life and limb embodied in their use. And it is insisted that this was requiring too great a degree of care, and the court was requested to charge that the company was only required to exercise a high degree of care in these respects, and not the highest degree of care. Counsel cites in support of his contention the language of this court in Chattanooga Street Railway v. Mingle, 103 Tenn. 667, 56 S. W. 23, 76 Am. St. Rep. 703; Street Railway v. Nugent (Md.) 38 Atl. 779, 39 L. R. A. 161; Nellis on Street Surface R. R. 288. The trial judge, in portions of his charge, did state the rule to be a high degree of care, and defined the term, with accuracy, as requiring care commensurate with the perils to be apprehended, and such as would make the appliances safe in their use; but he also, in another part, charged that the highest degree was required. The charge is open to the objection that the rule is not stated in the same or equivalent terms in all portions of the charge, and was, to some extent, confusing to the jury; but we must assume that the jury applied the strict rule of the highest degree of care, in order to constitute error, even upon defendant's contention. It is true in the case of Chattanooga R. Co. v. Mingle, 103 Tenn. 670, 56 S. W. 24, 76 Am. St. Rep. 703, this court said, "In view of the extreme peril consequent upon the displacement and fall of the wires, and in the operation of an electric railway...