Memphis St. Ry. C. v. Brown
Memphis St. Ry. C. v. Brown
Opinion of the Court
The Memphis Street Bailway Company operates a transportation system in the City of Memphis. Its vehicles are trackless coaches, powered by electricity from an overhead wire. Mrs. Brown claims that she was injured while a passenger on one of these coaches, and she gained a jury verdict and judgment for damages. The defendant appealed in error. The declaration is in one count. It charges that at the time the plaintiff sustained her injuries, “the coach was being operated on Madison Avenue at or near the intersection of Fourth 'Street, in the City of Memphis, when the defendant’s motorman suddenly stopped and/or swerved the coach to the left, apparently for the purpose of avoiding or attempting to avoid an automobile approaching on Fourth Street from the north, and this without any previous warning to plaintiff, throwing her off her balance, while she was standing holding to an upright
■ The only charge of negligence is in the following language :
“She would show that the defendant, its agent or operator of the coach, aforesaid, was negligent in suddenly and without warning stopping and/or swerving or maneuvering said coach so as to throw plaintiff off her feet and balance and against said rod, seats”, etc.
Plaintiff was the only witness to the facts of the accident, which she alleges occurred on May 4, 1950. She did not call it to the attention of the motorman, or anyone else, at the time, and in fact did not make any report of it at all to the company until July 1, 1950. She was not treated by a physician until June 9, 1950. Up until that date she was content to treat herself with home remedies.
Since the defendant did not know prior to July 1, 1950, that there had been an accident, it was laboring under a considerable handicap in preparing its defense. It could locate no employee who knew that an accident had occurred. It moved the Court to require the plaintiff to make her declaration more specific by furnishing it with information which would enable it to identify the coach and the operator in charge at the time, as well as the time of day at which the accident occurred. Plaintiff responded by averring that the operator was “a slender, dark complexioned man, appearing to her to be around 35 or 40' years of age, according to her best recollection,
With this information in hand, the defendant produced its records, showing its various operators who would have passed the intersection in question between the hours of 1:00 and 2:00 p. m. on that day. All testified that they knew of no such occurrence as that described by the plaintiff, and the plaintiff was unable to identify any of the operators as being the one in charge of the coach at the time of the accident. Hence so far as the testimony of witnesses is concerned, the defendant’s defense was necessarily altogether negative in character.
But, for the purposes of this appeal, the accident must be taken to have occurred as testified to by the plaintiff. The coach was traveling west on Madison Avenue, which is intersected by Fourth Street. There is a stopsign on Fourth Street, indicating that those entering Madison Avenue from the north should stop before doing so. At the time of the accident plaintiff was standing in the coach, grasping one of the upright rods provided for standing passengers to hold on to. She testified that as thd coach approached Fourth Street, “all of a sudden he came to a stop and I was standing, holding this upright and it threw my shoulder against the upright and he didn’t stop dead still, he just checked his speed and then he swerved the bus around this car and that jerked me again, jerked my body away from the upright and I was still holding on with my hand to keep from falling”.
Plaintiff was not thrown to the floor, and so far as appears, no other passenger was injured by the maneuver. In fact, it was not even noticed by any one else so far as appears. On cross-examination, the plaintiff said that when she first saw it, the automobile which came from the north out of Fourth Street into the intersection
Elsewhere the plaintiff testified that, “Yes, sir, he had to dodge it, he had to swerve around it”, referring to the car which had come into the intersection from Fourth Street.
There was no charge in the declaration and no evidence that the coach was being operated at an excessive rate of speed and no charge and no evidence that the operator was not properly on the lookout ahead, or that he did not have the coach under control. In fact, there was no charge that he improperly performed or failed to perform his duty in any other particular respect.
It seems to be the plaintiff’s contention that from her mere statement that the movement was a sudden one, it was permissible to draw an inference of negligence which shifted to the defendant the burden of showing the contrary.
In other words, an inference of negligence in such cases “arises only when the jerk or lurch is shown to be extraordinary so .as to be attributable to unskillful handling of the train or other fault of the carrier. Jerks, jolts, and lurches, according to common knowledge, occur in the ordinary nonnegligent operation and stopping of a train of a commercial railway.” Nashville, C. & St. L. Ry. v. Akin, supra. This is even truer in the case of a co,aeh of the kind here in question, operating through the traffic of a large city.
There is no claim that the plaintiff was preparing to disembark at a regular stop. There was no testimony whatever as to the nature of the movement of the vehicle —that is, whether it was extraordinary or unusual, except the conclusion of the plaintiff that the slowing down of the coach was “sudden”, and that “then he swerved the bus around this car”. This was not sufficient to justify an inference of negligence, because, as said, it is a matter of common knowledge that such movements occur when “in the ordinary non-negligent operation” of a coach under traffic conditions obtaining in the cities,
It has been held in a number of cases that the words “sudden”, “violent” ,and “unusual”, employed by an injured plaintiff in describing the movements of a streetcar, or railroad train, are not sufficient without more to establish the basis for an inference of negligence under the rule above referred to. McGann v. Boston Elevated Railroad, 199 Mass. 446, 85 N. E. 570, 18 L. R. A., N. S., 506, 127 Am. St. Rep. 509; Anderson v. Boston Elevated Railroad, 220 Mass. 28, 107 N. E. 376; Weinschenk v. New York, N. H. & H. Railroad, 190 Mass. 250, 76 N. E. 662; Bray v. Boston Elevated Railway, 303 Mass. 379, 21 N. E. (2d) 957; Seidenberg v. Eastern Mass. Street Railway, 266 Mass. 540, 165 N. E. 658, 659. The same rule has been applied in the case of a passenger injured while riding in a taxicab operating for hire. Conley v. Town Taxi, Inc., 298 Mass. 130, 10 N. E. (2d) 74.
But for another reason the movement of the vehicle described by the plaintiff does not justify an inference of negligence. This is because the only conclusion reasonably possible was that, more likely than not, the movement of the vehicle was reasonably necessary to avoid striking the automobile which was extended partly into the intersection. This was not only plaintiff’s testimony but the averment of her declaration. In such a case an inference of negligence is not justified from a “sudden movement” or a “sudden stopping”. Robinson v. Connecticut Co., 122 Conn. 300, 189 A. 453; Conley v. Town Taxi, Inc., supra; and cf. Cannon v. Louisville & N. R. Co., 252 Ala. 571, 42 So. (2d) 340.
In this connection it must be borne in mind that, as said, there was no pleading and no evidence that the
The plaintiff refers us to three cases, which she cites with confidence. These are Southern Coach Lines v. Haddock, 29 Tenn. App. 132, 194 S. W. (2d) 347; Tennessee Coach Co. v. Young, 18 Tenn. App. 592, 80 S. W. (2d) 107; and Duling v. Burnett, 22 Tenn. App. 522, 124 S. W. (2d) 294. Neither is in point on the facts.
The-first involved an injury to a passenger for hire in one of the-defendant’s buses when she was thrown from her seat as the driver came to a sudden stop in order to avoid colliding with an ambulance at a street intersection. The declaration charged that the bus driver was guilty of negligence in failing to maintain a proper lookout for traffic as he approached the intersection. There was evidence to sustain this charge. In the present case there is no such averment in the declaration and no such evidence.
The second case also involved an injury sustained by a passenger for hire in a bus owned by the defendant as a
We perceive no theory of the case of Duling v. Burnett under which it could be said that it had any relation whatever to the present case, and hence it is not worthwhile to discuss that decision.
The result is, the judgment is reversed and the motion for a directed verdict is sustained and the suit dismissed. The costs of the cause, including the cost of the appeal, are adjudged against the plaintiff, Mrs. Brown.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.