Pool v. City of Jackson (State Report Title: Poole v. Jackson)

• Decision Date: 22 June 1893
• Parties: POOL et ux. v. MAYOR, ETC., OF CITY OF JACKSON,
• Court: Tennessee Supreme Court

23 S.W. 57

93 Tenn. 62

POOL et ux. v. MAYOR, ETC., OF CITY OF JACKSON,

Supreme Court of Tennessee.

June 22, 1893

Appeal from circuit court, Madison county; L. S. Wood, Judge.

Action by E. C. Pool and wife against the mayor and aldermen of the city of Jackson for personal injuries caused by a defective sidewalk. From a judgment entered on the verdict of a jury in favor of defendant, plaintiffs appeal. Affirmed.

Haynes & Hays, for appellants.

Caruthers & Mallony and McCorry & Bond, for appellees.

BRIGHT Special Judge.

This is an action for damages against the city of Jackson, Tenn brought by plaintiffs, for alleged injuries to Mrs. Pool, by having her arm broken, etc., being thrown down by a defective plank walk. The damages claimed in the declaration are $10,000. There are three counts in the declaration, setting forth the cause of action with great minuteness. The first count, in short, is for wrongfully and negligently suffering a dangerous hole to be and remain on and across College street, etc., and to be out of repair, with notice to the city, etc. The second count, same as first, but adding "without lights," etc. The third count, same as first, but adding allegations "that defendants did negligently build, construct, and place down the defective foot crossing," etc. The defendant pleaded not guilty and issue joined on the plea.

This cause has been tried three times: First time, at the May term of 1891 of circuit court. Verdict for defendant. A new trial was granted by the trial judge on account of improper conduct of the jury. The second trial was had at the September term 1891, of said court, and resulted in a verdict and judgment for $3,000 in favor of the plaintiffs, which was, on appeal to this court by the defendant, reversed and remanded for errors as set out in the opinion of this court, by Justice Lea, reported in 91 Tenn. 448 et seq., 19 S.W. 324. The cause was again tried at the January term, 1893, of the circuit court, and resulted in a verdict for the defendant. Plaintiffs' motion for a new trial being overruled by the court, an appeal in error was prayed for and granted to this court, and is before us for determination. The plaintiffs have assigned numerous errors.

The first error assigned is that "the court erred in not granting a new trial on the facts; that the verdict is against the evidence, which largely preponderates against the finding of the jury." This assignment of error is not well taken. It does not state there is no evidence to support the verdict, but presupposes that there is evidence to support the verdict, of the jury; and there is ample evidence, found in the record, to support the verdict.

The second assignment of error is that "the court erred in sustaining defendant's exceptions to plaintiff's testimony as to borrowing money from the building and loan association, etc., with which to build certain houses." Witness Haughton, in his cross-examination, in stating for whom he had worked, stated he had worked for Mrs. Pool, and, among other work done for her, he had helped to build three houses for her. Mrs. Pool, while on the witness stand, was asked by plaintiffs' attorney where she "got the money to build these houses." She answered, "From the building and loan association," which was objected to by the defendant, and objections sustained by the court, and this is assigned as error. This testimony was clearly irrelevant,-not tending to elucidate any issue in the case,-and wholly immaterial, and was very properly excluded by the court.

The third assignment of error is in overruling plaintiffs' exceptions to the admission of the testimony of John W Gates, J. T. Beveridge, S. C. Lancaster, H. C. Irby, W. C. Cason, H. C. Jameson, J. H. Duke, John T. Stark, L. B. Shelton, W. F. Price, and G. H. Ramsey. Gates testified that this walk, where the injury was alleged to have occurred, "was laid in the ordinary way walks were laid in the city." Beveridge testified that the "planks were laid of good, sound timber, usual and customary." This testimony was not incompetent. It was only intended by this to show that the walk, when originally laid, was not defectively done, and that this walk was laid like all other walks of the city, and of good, sound timber, etc. We have very carefully read the testimony of these witnesses, and can find no real objections to their testimony, as admitted by the court. Much of their testimony was, upon objections of the plaintiffs, excluded by the court from the jury. The controversy just here was an attempt on the part of the plaintiffs to fix constructive notice upon the defendant that the said sidewalk was out of repair, and that the defect in it was of such a nature and duration as to give constructive notice of same to the defendant; and, to rebut the contention of constructive notice, this testimony was admissible. It is not, nor does it assume to be, an opinion whether the walk was safe or unsafe. The testimony complained of was the question put to these witnesses: "State whether or not the walk was in an apparently safe condition at and...