Southern Ry. Co. v. Pugh

• Decision Date: 13 November 1896
• Citation: 37 S.W. 555,97 Tenn. 624
• Parties: SOUTHERN RY. CO. v. PUGH.
• Court: Tennessee Supreme Court

37 S.W. 555

97 Tenn. 624

SOUTHERN RY. CO. v. PUGH.

Supreme Court of Tennessee.

November 13, 1896

Appeal from circuit court, McMinn county; W. T. Lane, Special Judge.

Action by John Pugh against the Southern Railway Company to recover damages for personal injuries. From a judgment by plaintiff defendant appeals. Affirmed.

Harbison & Roberts and J. E. Mayfield, for appellant.

Burkett & Mansfield, for appellee.

SNODGRASS C.J.

This cause is before the court for the second time. On the first appeal it was reversed for error in the charge of the court respecting statutory precautions which were held not to apply within the limits of the appellant's switch yard. 95 Tenn. 419, 32 S.W. 311. It was again tried this time before W. T. Lane, special judge, and a jury, when verdict and judgment were rendered for $2,000, the amount sued for. Defendant again appealed, and assigned errors. The errors assigned are:

First. That there is no evidence to sustain the verdict. There was evidence, and this need not be further noticed.

Second. That the verdict was excessive. Whether that be true or not it is not so excessive as to authorize us to disturb it.

Third. It is insisted that the court erred in his charge to the jury on a proposition which was submitted as follows: "If plaintiff, being a person of ordinary intelligence, and possessed of his natural faculties, voluntarily placed himself in front of the moving cars in defendant's switch yard, or on and dangerously near to the same, while such moving cars were approaching him, and in full view and if while in this position he learned of his danger either through the medium of his own senses of sight or hearing, or by warning given by defendant's employés or other persons or means in sufficient time for him to have gotten off of the track and out of the way, and if he failed to do so, then the plaintiff was guilty of such negligence as would bar any recovery, and your verdict should be for defendant." And to which the court added: "Gentlemen of the jury, the above is the law, but it remains for you to determine from the proof whether the plaintiff was in fact notified by any means of his danger, or whether, by ordinary prudence and reasonable caution, he could have learned of such danger; and, if so made known to him, was it in time to give him reasonable chance to escape? and such failure to escape was on account of terror or fright occasioned by the sudden approach of the cars,-then he would not be guilty of negligence in not escaping." There was no error in this.

Fourth. That the court erred in refusing to charge the jury that "if the negligence of the plaintiff directly contributed to the cause, or was the occasion of the injury, then there could be no recovery in the case by plaintiff." This was the law in this particular case, it not being one governed by the statutory provisions against accidents in which the contributions to the injury, whether direct or indirect, by the plaintiff, cannot bar his recovery, but can only be considered in mitigation of damages. The rule at common law was, and in this state still is, that any contribution to an injury which directly produced it would bar the action in any case where statutory provisions to the contrary do not apply. The court declined to give this charge, among others, which need not be noticed, making in that connection the following statements: "The court declines to give either of the above requests in charge to the jury, as he has fully instructed the jury on the law of points involved." Whether it is to be understood by this that the court meant he did not regard it as the law as now insisted by counsel for plaintiff in error, or whether he regarded it as the law, and as already given in his charge, does not affirmatively appear from the statement itself. Whatever may be the effect of the charge already given can only be determined by a reference to those parts of it in which this question was in any way treated. We proceed to state, therefore, what the court has said, and all he has said, respecting the negligence of the plaintiff. His first reference to it is in the following proposition: "The jury will perceive that the gist of the action is a question of negligence. It becomes necessary, therefore, for me to define and explain to you what negligence in legal effect is. Negligence is the want of ordinary care and caution in doing an act; or it is the failure or omission to do what a person of ordinary prudence or caution would do under the circumstances; or it is a failure to perform a duty required by law. *** In order to sustain an action on account of negligence it is necessary for the plaintiff to show not only that the defendant was negligent, but that such negligence was the proximate cause of the injury complained of; that is, that it immediately produced or brought about the injury, or set in operation the agencies which did so. For, although the proof may show that the defendant was to some extent negligent, yet, if such negligence contributed only as the remote, instead of the immediate, proximate cause of the injury, and the plaintiff's own negligence was the proximate cause, the defendant would not be liable. If the proof in this case shows that the defendant was negligent, and that the negligence was the proximate cause of the injury complained of, then the plaintiff would be entitled to recover such damages as he sustained. On the other hand, if the plaintiff was negligent, and his negligence was...