Nashville Ry. & Light Co. v. Henderson

• Decision Date: 09 February 1907
• Citation: Nashville Ry. & Light Co. v. Henderson, 99 S.W. 700, 118 Tenn. 284 (Tenn. 1907)
• Parties: NASHVILLE RY. & LIGHT CO. v. HENDERSON.
• Court: Tennessee Supreme Court

99 S.W. 700

118 Tenn. 284

NASHVILLE RY. & LIGHT CO. v. HENDERSON.

Supreme Court of Tennessee.

February 9, 1907

Appeal from Circuit Court, Davidson County; J. A. Cartwright, Judge.

Action by Amanda Henderson against the Nashville Railway & Light Company.From a judgment in favor of plaintiff, defendant appeals.Reversed.

R. F Jackson, for appellant.

Lawrence & Son, for appellee.

BEARD C.J.

This action was brought by Amanda Henderson against the Nashville Railway & Light Company to recover damages for personal injuries sustained by her as the result of the alleged negligence of that company.The trial resulted in a verdict and judgment in favor of the plaintiff.At the close of the plaintiff's testimony, a motion was made by the defendant for a peremptory instruction.This was overruled.Afterward the defendant proceeded to put its case through witnesses to the jury, but failed at the conclusion of the whole case to renew this motion.It is now assigned for error that the trial judge should have granted the motion when made.

The practice is now well established in this state that the defendant may move for peremptory instruction, either at the close of the plaintiff's evidence or of the entire case.While the exact point arising on this record has not been heretofore determined by this court, yet it is well settled by the authorities that, if made at the close of the plaintiff's case and overruled, the subsequent introduction of evidence in his own behalf by the defendant will be deemed a waiver of his exception to the action of the court, unless the motion is renewed at the close of the whole case.This question has arisen in the Supreme Court of the United States, as well as in courts of last resort in the various states, both as to the effect of introducing testimony by the defendant after a motion for an involuntary nonsuit, as well as for a peremptory instruction, has been overruled, and the great weight of authority supports the rule just announced.In the case of Bogk v. Gassert,149 U.S. 17, 13 S.Ct. 738, 37 L.Ed. 631, it is said: "A defendant has an undoubted right to stand upon his motion for a nonsuit, and have his writ of error if it be refused; but he has no right to insist upon his exception after having subsequently put in his testimony and made his case upon the merits, since the court and jury have the right to consider the whole case as made by the testimony.It not infrequently happens that the defendant himself by his own evidence supplies the missing link, and, if not, he may move to take the case from the jury upon the conclusion of the entire testimony."In support of this holding the court cites Grand Trunk R. Co. v....