Postal Tel. Cable Co. v. Zopfi

• Decision Date: 18 January 1894
• Citation: 24 S.W. 633,93 Tenn. 369
• Parties: POSTAL TELEGRAPH CABLE CO. v. ZOPFI.
• Court: Tennessee Supreme Court

24 S.W. 633

93 Tenn. 369

POSTAL TELEGRAPH CABLE CO. v. ZOPFI.

Supreme Court of Tennessee.

January 18, 1894

Appeal from circuit court, Davidson county; J. W. Bonner, Judge.

Action by Casper Zopfi against the Postal Telegraph Cable Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Vertrees & Vertrees, for appellant.

Jas Trimble, John Ruhm & Son, E. L. Gregory, and A. J. Caldwell for appellee.

WILKES J.

This is an action for damages for personal injuries sustained by the plaintiff's minor daughter at the hands of the defendant the Postal Telegraph Cable Company. Plaintiff sees a recovery upon the ground of loss of services of his daughter. There was a trial before the court and jury, resulting in a verdict and judgment for the plaintiff for $1,159 and costs, from which the telegraph company has appealed, and it has assigned errors. The errors assigned are to the charge of the court as given, and the refusal to give other charges as requested, and that the verdict is not sustained by the evidence. The plaintiff is a farmer and dairyman living on the Gallatin pike, about three miles north of Nashville. In September, 1890, his daughter Emma, then about 13 years of age, was returning to her home from school, along the turnpike road, one evening, through a rain. She was carrying an umbrella over her, and had a satchel of books in her hands. When she reached her father's place, she attempted to pass from the turnpike, over some stepping-stones, to the front gate. In front of this gate there was a platform, which had been constructed by the plaintiff to avoid stepping in the mud in passing through the gate. This platform was about 4 feet wide and 4 1/2 feet long. There is some controversy and uncertainty about its elevation or height above the ground, but it was probably about 15 inches high. The telegraph company was then engaged in constructing a line along the turnpike between Nashville and Gallatin, and had hauled long poles on wagons, and thrown them out, at intervals, along the road on the side next to plaintiff's premises. One of these pealed chestnut poles was thrown partially in front of this platform, the larger end extending about one-half the length of the platform. The smaller end extended about 30 feet towards Nashville, along and in front of plaintiff's yard. There is some conflict and uncertainty about the size of this pole, but it is conceded by defendant that it had a circumference of 27 and a diameter of 9 inches at its larger end, in front of the platform. It was thrown about 6 inches from the stepping-stone, which was flush with the ground, and about 12 or 15 inches from the edge of the platform. It lay between the stepping-stone and the platform, and in passing from the stone onto the platform, and through the plaintiff's front gate, a person must necessarily step on or over it. This could be avoided by passing around the end of the pole, a few feet, through the mud and water, and thus reaching the platform without crossing the pole. The young girl had not been in the habit of going to school by this route, but usually went through a side gate and her father's field or lot, reaching the pike at a different point. A short time before the accident occurred, the field had been plowed up; and she could not, at this time, reach her father's house by the usual route, on account of the rain and plowed ground. In attempting to pass, on this occasion, from the stepping-stone onto the platform, and through the gate, the young lady did not step on the pole, but over or across it to the platform, when, the platform being saturated and sleek with the falling rain, her foot slipped on the platform, and she fell backward, her hip striking the pole. The consequence was a severe injury, which confined her to her bed for many months, and permanently crippled and disabled her. She suffered great pain, and for some time her life was despaired of; but for this pain no damages are sought in this action, another suit having been brought for her benefit in the federal court on this account.

Among other things, the court charged the jury as follows: "If the proof shows that the plaintiff knew, or by the exercise of ordinary care and diligence might have known, that the pole was so placed in front of his gate and platform as to render it dangerous for a child of his daughter's age strength, and discretion to attempt to pass over it, then it was his duty to have removed it from such a position within a reasonable time." Defendant does not except to this part of the charge,...