Young v. Cowden

• Decision Date: 17 April 1897
• Citation: 40 S.W. 1088,98 Tenn. 577
• Parties: YOUNG v. COWDEN.
• Court: Tennessee Supreme Court

40 S.W. 1088

98 Tenn. 577

YOUNG v. COWDEN.

Supreme Court of Tennessee.

April 17, 1897

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action by Ellen F. Cowden against Fred B. Young for damages. From judgment for plaintiff, defendant appeals. Affirmed.

Percy & Watkins, for appellant.

L. & E Lehman, for appellee.

WILKES J.

This is an action for personal injuries. It was tried before the court and jury, and a verdict was rendered for $2,000. Upon suggestion of the court, a remittitur of $1,000 was entered by plaintiff, and judgment was entered for $1,000, and the defendant appealed, and assigned errors. It appears that plaintiff, with her sister Mrs. Vacaro and her brother-in-law A. B. Vacaro, was driving one evening along Kerr avenue, in the city of Memphis. The two ladies were sitting on the back seat of the rockaway, while Mr. Vacaro was seated in front and driving. Kerr avenue runs east and west. Mr. Vacaro lived on the south side of the avenue. When he came to a point opposite the gate leading into his premises, he stopped his vehicle on the left side of the street, to wait until the gate could be opened, so that he might drive in. In doing so he turned his horse's head towards the gate, so that the rockaway extended out to the center of the street on the left side, the horse and vehicle thus occupying the left-hand half of the roadway or avenue. The street at this point is about 42 feet wide. The curtains, side and back, of the vehicle, were down. While thus standing in the roadway of the street, waiting for the gate to be opened, the defendant who had been driving along the avenue for some distance in a buggy behind the rockaway, and going in the same direction, drove his buggy into the rear end of the rockaway, crushing the right hind wheel of the vehicle, overturning it, and throwing the occupants out. The plaintiff was a lady some 74 years of age, and, in the fall and crushing of the vehicle, she had her right arm broken above the elbow, so that the bones protruded through the flesh, and she was otherwise bruised and injured. There was space sufficient for the defendant to have passed the standing vehicle on the right-hand side, and the avenue was not crowded with vehicles. There was a small ditch about five or six inches deep on the right side, but it was not deep enough to prevent an easy passage. Defendant, in his testimony, claimed that the vehicle in front stopped rather suddenly and unexpectedly at the gate, and that his horse plunged to the left, and that the accident was unavoidable. In this he is not supported except by his wife. It appears that the horse driven by defendant did get a little alarmed, but it was only after the collision, and in consequence of it. The occupants of the rockaway in front did not know that defendant was driving in their rear, and did not see the manner in which the accident occurred until after the collision, and had no knowledge that he desired to pass.

Quite a number of errors are assigned. The first is that the verdict of the jury is against the great weight and preponderance of the testimony. This assignment is not good. The question after verdict by a jury is not as to the weight or preponderance of the testimony, but is there any material reliable testimony to support the verdict? If so, this court will not disturb the finding of the jury. Besides, in this case there is material evidence to support the verdict. Kirkpatrick v. Jenkins, 96 Tenn. 85, 33 S.W. 819; Minton v. Stahlman, 96 Tenn. 111, 34 S.W. 222. No question has been raised as to whether plaintiff is chargeable with the negligence of the driver of the vehicle, if he was guilty of negligence, nor whether she, as a mere passenger in the vehicle, can be said to be negligent in not conforming to the law of the road; and we therefore express no opinion upon this point.

It is next assigned as error that the court said to the jury: "In cases where persons are injured, we naturally have our sympathies aroused in behalf of their sufferings and crippled condition, and that, too, very properly. While this is commendable, we must never lose sight of the fact that we are engaged in this trial for the sole purpose of determining: (1) How did this accident occur? (2) Which, if either of the parties, is to blame? (3) What is the extent of the injury?" It is argued that this was virtually an instruction to the jury that they were to give effect to their sympathy on account of the plaintiff's injury, suffering, and crippled condition, as well as the other matters stated by him, and that he should have said to them, in addition, not to allow their sympathies to enter into the consideration of the case. We think the expression used by the trial judge is subject to criticism, as given, for its meagerness, and could have been improved by using the additional caution now suggested; but no further charge upon the point was asked at the trial, and the jury were told that their sole duty was to determine the the legal features in the case.

It is again assigned as error that, in considering the question of negligence, the jury might look to the speed at which defendant was driving, the nearness of the horse and vehicle to the one plaintiff was in, and to the disposition of the animal he was driving. The objection is that these propositions were put in the alternative, and that the matter of negligence was made to turn to some extent upon the defendant's knowledge of his horse, or acquaintance with his habits and disposition while being driven. The charge upon the point was quite full, and we are unable to see any error in it. The court said: "In this case, under the issues presented, ordinary care is such as is usually exercised in like circumstances by the majority of the community who engage in a like business. If the jury find that defendant, at the time of the collision, was as careful as people generally are under the circumstances and conditions in which the parties were then situated, then the defendant was not guilty of negligence, and did use ordinary care, and he is not liable." He further charged the jury that a horse, though reasonably safe, may prove unmanageable in some cases, and this should not be taken to indicate negligence on the part of defendant. He told the jury that the question in the case was whether the defendant, Young, was exercising the care which an ordinarily careful driver would have exercised under those circumstances. He further said: "When the evidence satisfies you that the horse suddenly and unexpectedly did that which the driver had no right to expect him to do, and you find this action of the horse was the cause of the collision, then no recovery can be had."

The fourth assignment of error raises the question whether a vehicle in front of another upon a public highway or street may, under any circumstances, turn to the left, and occupy that portion of the street or road, and yet be free from negligence. Reference is made to sections of the Code (Shannon's Code,§§ 1601, 1603, 1605) which provide that when vehicles are traveling in the same direction, the one in the rear may pass by...