Nashville, C. & S.L. Ry. v. Reeves
| Decision Date | 01 November 1941 |
| Citation | 157 S.W.2d 851,25 Tenn.App. 359 |
| Parties | NASHVILLE, C. & S. L. RY. v. REEVES. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court Jan. 17, 1942.
Appeal in Error from Circuit Court, Rutherford County; T. L Coleman, Judge.
Action by Howard Reeves against the Nashville, Chattanooga and St Louis Railway to recover for injuries sustained as result of defendant's alleged negligence. There was a judgment for the plaintiff, and defendant appeals in error.
Reversed and remanded.
Wm. H Swiggart, Edwin F. Hunt, W. A. Miller, and Walton Whitwell, all of Nashville, and James D. Richardson, of Murfreesboro, for plaintiff in error Railway.
C. C. Jackson, Barton Dement, Jr., and George S. Buckner, all of Murfreesboro, for defendant in error Reeves.
This is a suit for damages for personal injuries averred to have been suffered by the plaintiff Reeves while loading a freight car on a side track in the defendant's railroad yard as the result of the defendant's negligence. It was contended by the plaintiff Reeves that he was loading scrap iron onto a flat freight car, from his truck, on a side track at the defendant Railway Company's freight depot; that while he and several others were attempting to load a very large piece of iron with the aid of a crowbar, one of the defendant's switch engines was driven without warning against the freight car; that the impact knocked him down, as the result of which his back was wrenched and sprained.
The defendant pleaded the general issue of not guilty.
The case was tried by the judge and a jury, and resulted in a verdict of $1,000 in favor of the plaintiff against the defendant, and judgment was entered accordingly.
The defendant's motion for a new trial was overruled and it appealed in error to this court and has assigned errors, which are, in substance, as follows:
(1) There is no evidence to support the verdict.
(2) There was a variance between the pleadings and the proof.
(3) The trial judge erred in his charge to the jury, in that he unduly emphasized the plaintiff's theory of the case by repetitions.
(4) The trial judge erred in charging the jury as follows:
"Of course, it is the further contention of the defendant, Railway, that it was not guilty of negligence, in the matter, and that if there was a backing of the freight engine, that the plaintiff had warning of the same; that some of the fellow workers gave him warning to 'look out,' that 'a freight engine was backing."'
(5) The trial judge erred in charging the jury as follows:
(6) The verdict of the jury is so excessive as to indicate passion, prejudice and caprice on the part of the jury.
The facts necessary to be stated are as follows: Howard Reeves, aged twenty-six years, was in 1940 engaged in the business of operating a truck, hauling for others for hire.
In March, 1940, he hauled a load of scrap iron, for Jim George, to the Nashville, Chattanooga & St. Louis Railway's freight depot, and loaded it on a flat freight car that was standing on a side track.
The plaintiff testified that he and five other men were loading a "caterpillar track" that weighed about 1,500 pounds; that they were using a crowbar to slide the "track" onto the freight car; that as they were holding the crowbar and one end of the "track" was on the freight car and the other end on the truck, the defendant's switch engine was backed against the freight car, without warning, jarring it; that the impact caused the end of the "track" that was on the freight car to fall off, which caused the crowbar to knock him down; that he fell to his knees in the truck; that in the fall his back was wrenched and sprained and his finger cut.
He testified that he has been unable to do much work since that time; that he cannot load or unload his truck although he is able to drive it.
He claims to be permanently but not totally injured. He sued for damages for personal injuries and to recover medical and doctor's bills.
The evidence for the Railway Company was that one of the men on the truck warned the others that the switch engine was coming; that some of the men jumped off the truck and the others stood up; that Howard Reeves did not fall down and was not injured; that the "caterpillar track" slipped a little but the men finished loading it.
1. The plaintiff in error Railway Company's first assignment of error is that there is no evidence to support the verdict.
This assignment must be overruled. The evidence as to the collision and alleged injury is as follows:
The plaintiff, Howard Reeves, testified that he was knocked down as the result of the collision of the switch engine with the freight car, without warning.
Earl Tyree testified that he jumped off the truck just before the switch engine struck the freight car; that when he went back to the truck Howard Reeves was standing up smiling and said, "It hurt my back."
Agg Cato Miller testified that after the switch engine struck the freight car Howard Reeves did not take part in the loading, that he said his side hurt.
Grady Reeves, brother of Howard Reeves, testified that Howard was knocked down by the collision, and complained of his back afterward.
For the Railway Company Will Sulls (Suggs) testified that he was on Reeves' truck; that he saw the switch engine approaching and warned the others; that some of them jumped off the truck and others stood up; that nothing happened to Howard Reeves; that he was standing within three feet of him at the time.
Samuel Sugg, aged twelve years, testified that warning was given of the approach of the engine; that he was standing on the platform by the side of the truck and could see Howard Reeves; that he did not fall down.
There is direct conflict in the evidence of the plaintiff and the defendant as to whether Howard Reeves was knocked down and whether any warning was given. The jury by its verdict has found that he was knocked down, and as there is evidence to support this finding this court is bound by it. Garland v. Mayhall, 17 Tenn.App. 449, 68 S.W.2d 482.
The evidence as to his injuries is as follows:
Howard Reeves, Mrs. Howard Reeves, and Dr. E. B. Allen testified that he has since suffered from pains in his back.
Agg Cato Miller, Dave Stephens and Grady Reeves testified that he cannot do the work he formerly did.
Therefore there is evidence that he was injured, but the question whether his injury is permanent will be hereinafter discussed.
The defendant Railway Company contends that the plaintiff's evidence is nullified because he made a number of contradictory statements on the witness stand about what he did after the collision of the switch engine with the freight car; that he testified that he got out of the truck and went off; that he got in his brother's truck about twenty minutes afterward; that five or six of them got in his brother's truck; that he got in the truck by himself and drove home; that he went to the station to see about getting the "caterpillar track" loaded.
These contradictory statements made by Reeves were in regard to his acts after the injury was suffered. These statements were not material on the question of liability.
The jury may consider as affecting the credence of the witness the contradictions made during the examination before them. 3 Ency. of Evidence 774.
The situation here is different from that in the case of DeGrafenreid v. Nashville R. & L. Co., 162 Tenn. 558, 39 S.W.2d 274. In that case the witness made two sworn statements about the cause of the accident that contradicted each other. The Supreme Court held that the two statements (about a determinative question) nullified each other, therefore there was no evidence.
And in the present case there is other evidence about the accident besides that of the plaintiff.
Where the contradictory statements are not material, the question of the weight of the evidence was for the jury. Garland v. Mayhall, 17 Tenn.App. 449, 68 S.W.2d 482.
2. The defendant contends that there is a variance between the declaration and the plaintiff's evidence, as the declaration states that the plaintiff "had hold" of the "track" at the time of the collision, and the plaintiff testified that he was moving the track by means of a crowbar.
The proximate cause of the injury in this case was the impact resulting from the...
To continue reading
Request your trial
-
Bara v. Clarksville Memorial Health Systems
...of Missouri Bar, 136 (Glenn E. Bradford 2001). Tennessee seems to have picked up this language in Nashville, C. & St. L. Railway v. Reeves, 25 Tenn.App. 359, 157 S.W.2d 851 (1941) in a case dealing with the admissibility of medical evidence as to the permanency of an Delving further into th......
-
Mitchell v. Farr
... ... v. Weiss, 25 Tenn.App. 520, 160 S.W.2d 438; [32 ... Tenn.App. 205] Nashville C. & St. L. Ry. v. Reeves, ... 25 Tenn.App. 359, 157 S.W.2d 851; Faulk v ... McPherson, 27 ... ...