Memphis St. Ry. Co. v. Shaw

• Decision Date: 09 June 1903
• Citation: 75 S.W. 713,110 Tenn. 467
• Parties: MEMPHIS ST. RY. CO. v. SHAW.
• Court: Tennessee Supreme Court

75 S.W. 713

110 Tenn. 467

MEMPHIS ST. RY. CO. v. SHAW.

Supreme Court of Tennessee.

June 9, 1903

Appeal from Circuit Court, Shelby County; J. P. Young, Judge.

Action by Mrs. Kate Shaw against the Memphis Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wright Peters & Wright, for appellant.

Carroll McKeller & Bullington, for appellee.

WILKES J.

This is an action for damages for personal injuries. It was tried before a jury in the court below, and there was a verdict for $5,000. On motion for a new trial, $2,000 of this amount was remitted, and judgment was rendered for $3,000 and costs, and the street car company has appealed and assigned errors.

The substance of the complaint is that plaintiff was negligently carried beyond her destination on her trip out from the city to her home, and was afterwards carried on to the terminus of the road, and brought back, and again wantonly carried beyond her destination on her return.

It is said the court erred in admitting, over the objection of the company, evidence of what was said and done by the conductor and plaintiff on the trip out and the return. Plaintiff's contention is that she was carried negligently beyond her destination in going out, and that the conductor would not return with her to her destination; that he treated her rudely on the trip out and back, and negligently and wantonly on the return trip carried her beyond her stopping place. The case in this court must be viewed from the plaintiff's standpoint, and on her theory and what was said and done on the trip out and back is not only competent, but constitutes the very gist of the action.

It is said the court erred in the following instruction to the jury: "The court further instructs you that a person who enters a street car to be transported to a certain place, and pays his fare, is a passenger, and that there is a corresponding obligation on the part of the passenger to act with prudence, and to use the means provided for his safe transportation with the same reasonable circumspection and care that is required on the part of the carrier, for the law does not prescribe a different rule or measure of care with respect of parties, and, if his negligent act solely contributes to bringing about the injury of which he complains, he cannot recover." The criticism is in the use of the word "solely," and the contention is that the court should have told the jury that, if both plaintiff and the company were negligent, the plaintiff could not recover. To give to the word "contribute" its legal signification would make the charge unintelligible, as one act cannot "contribute" solely to effect a given result, but only in connection with some other act; and there can be no sole contributory cause of an accident. We may assume, therefore, that the trial judge meant, if the negligent act of the plaintiff produced or was the sole cause of the injury, she could not recover. There are two or more answers to this assignment, assuming that it was meant to charge the doctrine of concurrent negligence. One is that there was no request for any other or additional charge. Another is that the company insisted throughout the trial that there was and could be no contributory negligence or concurrent negligence, under the proof, but that the facts presented a case of sole negligence on the part of plaintiff or sole negligence on the part of defendant, according to whether the jury adopted plaintiff's or defendant's theory of the facts. Counsel for the road stated that, if plaintiff's theory was true, then the road was guilty of negligence, to which, in the language of counsel, "we don't claim her negligence contributed." The jury evidently adopted the theory of plaintiff. The case of Nashville Street Railway Co. v. Norman, 108 Tenn. 331, 67 S.W. 479, is cited by counsel for the road, and relied on by him; but in that case there was a theory of concurrent negligence presented by the record, and the court was asked to charge the doctrine of concurrent or contributory negligence. The court in the present case, in his charge, did present the feature of contributory negligence, saying to the jury: "But if the passenger is injured by his or her own negligence or want of care, and without any negligence or want of care on the part of the carrier, then the carrier is not liable, and there can be no recovery." This was meager, but there was no request for additional charge.

It is said the court erred in charging as follows: "You are also instructed that it is the duty of those in charge of the car, when signaled to stop at a regular stopping place to discharge passengers or to take on others, to await a sufficient length of time to allow the passengers--whether those giving the signal to stop, or those who are undertaking or attempting to alight--a sufficient length of time to alight in safety, by the exercise of reasonable diligence and to see and know that no passenger is in the act of alighting when the car is again put in motion. And it is likewise their duty to give greater care and consideration to aged and infirm persons, whose age or infirmity are apparent from their appearance, than to other persons, and, if necessary, to assist them in getting off the car; and, if they fail to perform their duty in these respects, the employer is liable." One objection to this is that it requires the conductor absolutely to know and see that no passenger is in the act of alighting when the car is put in motion, and thus makes the company virtually an insurer that the conductor shall see the passenger if alighting. This doctrine is laid down in Booth on Street Railroads, § 349, in these words: "It is the duty of those in charge of the car, when signaled to stop for the purpose of discharging passengers, to ascertain who and how many of the passengers intend to alight at that place, to wait a sufficient length of time to allow them to alight in safety by the exercise of reasonable diligence, and, in any event, to see and know that no passenger is in the act of alighting, or otherwise in a position which would be rendered perilous by the motion of the car when it is again put in motion." Booth on Street Railroads, § 349. Again, in Highland Co. v. Burt, 92 Ala. 29, 9 So. 410, 13 L. R. A. 95, it is said: "It is the duty of the driver to...