Morgain v. Y. & M. V. R. R. Co.

• Decision Date: 21 February 1941
• Citation: 172 S.W.2d 1013
• Parties: MORGAIN v. Y. & M. V. R. R. CO.
• Court: Tennessee Supreme Court

Page 1013

172 S.W.2d 1013

MORGAIN v. Y. & M. V. R. R. CO.

Court of Appeals of Tennessee, Western Section at Jackson.

February 21, 1941.

Certiorari Denied June 28, 1941.

Appeal in error from Circuit Court, Shelby County; J. P. M. Hamner, Judge.

Action by Susie Morgain against Y. & M. V. R. R. Company to recover for injuries sustained while a passenger on defendant's car. From a judgment for defendant, plaintiff appeals in error.

Affirmed.

James A. Padgett, of Memphis, for plaintiff in error.

Evans, Evans & Creson, of Memphis, for defendant in error.

KETCHUM, Judge.

This is an action for damages for personal injuries sustained by the plaintiff as the result of a car window falling on and mashing her hand. The plaintiff had a ticket which entitled her to passage on one of the defendant's trains from Memphis to Lambert, Mississippi. She boarded the train at Memphis and took a seat by an open window in a day coach. After the train had proceeded for several miles and was beyond the Memphis City limits the car window fell and mashed her hand which was resting on the window sill. It is not known who raised the window or what caused it to fall. The declaration does not charge the defendant with any negligence, and the plaintiff bases her claim for damages entirely upon an alleged breach of contract of carriage.

The cause was heard by the court without a jury. At the close of the proof the court in a written finding of facts dismissed the plaintiff's action, and her motion for a new trial having been overruled she has appealed in error to this court.

There is no dispute as to the facts. There is neither allegation nor proof that there was any defect about the window, or its latch or fastenings, or that it was raised by any servant or employee of the defendant and left unlatched. It is shown that the windows were often raised or lowered by the passengers for their own comfort or convenience, and without any assistance from the members of the train crew. The proof shows that the window was raised and in a state of rest when the plaintiff boarded the train, and that it remained in that position until the train had travelled several miles when it suddenly fell. There is no evidence that it fell as the result of any act of the plaintiff in trying to lower it. Her testimony is that her right hand was resting on the window sill and that the window fell without any warning and mashed her hand against the window sill causing the painful injuries for which she sues. Her sole claim is that this was a breach of the contract of carriage which resulted in injury to her and for which the defendant is liable.

The assignments of error challenge the correctness of the conclusions reached by the trial judge upon the foregoing facts, and especially his conclusion that the plaintiff was not entitled to damages for her injuries upon the ground that the defendant had breached its contract to transport her safely as a passenger; and (2) that she was not entitled to recover in the absence of a showing that her injuries were the proximate result of some negligent act of the defendant or its agents, servants or employees.

The plaintiff relies upon the case of McClellan v. Tennessee Electric Power Co., 174 Tenn. 58, 123 S.W.2d 822, 120 A.L.R. 928, as a parallel case and controlling here. That was a suit by a passenger against a bus company. In the course of the trip the motorman lost consciousness and consequently lost control of the bus, and it ran off the street and struck a pole and injured the plaintiff. It was held that this was a breach of the contract of carriage although the injury was caused by the unconscious or insensible act of the motorman; and it was held that the defendant was liable to the passenger for the insensible acts of its employee just as it would be liable for the wilful torts of its servant, as in Pullman Palace Car Co. v. Gavin, 93 Tenn. 53, 23 S.W. 70, 21 L.R.A. 298, 42 Am.St.Rep. 902; Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557, 46 L.R.A. 549; Memphis St. R. Co. v. Shaw, 110 Tenn. 467, 75 S.W. 713; and Neville v. Southern Ry. Co., 126 Tenn. 96, 146 S.W. 846, 40 L.R.A.,N.S., 995.

In the McClellan case the liability of the defendant was based upon the ground that the act of motorman in running the bus off the highway and into a pole was a negligent act, although he was unconscious at the time; and in the other cases cited the...