Tennessee Cent. R. Co. v. Vanhoy.

have contributed less than that of others to the injury done. But this is not the rule where the tortfeasors act independently of each other, without community of interest or concert of action, or common design or purpose, or concurrent acts of negligence, or where the injury is not the result of force directly applied, but the consequential effects of the wrongful conduct or negligence constituting a nuisance."

"In instances where the wrongful acts of two or more persons concur as proximate causes of an injury, the wrongdoers are liable jointly or separately, and the fault of one is no defense for the other or others. 2 Thomp. Neg. 1088."

In Electric Railway Co. et al. v. Shelton, 89 Tenn., 423, 14 S. W., 863, 24 Am. St., Rep., 614, it was held that both the Electric Railway Company and the Telegraph Company were liable for the value of a horse killed belonging to the plaintiff by coming in contact with a broken wire of the Telegraph Company, it appearing that the Telegraph Company had negligently permitted its broken wires to fall and remain upon the trolley wire of the Electric Railway Company, and that the latter company had failed to place guard wires over the trolley wire as a protection against accidents, and to observe the condition of the broken telephone wire; it being such as to arrest the attention of a prudent man engaged in the business of either company.

As to the contention of the defendants railroad company and receivers that the verdict of the jury is excessive:

This contention is also urged by the administrators of the estate of Mr. Hitshew, deceased, and will be disposed of later in this opinion.

Tennessee Cent. R. Co. v. Vanhoy.

We will now dispose of the assignments of error made separately by the administrators of Mr. Hitshew, deceased, and which have not heretofore been disposed of.

By their first assignment of error it is insisted that the Court of Civil Appeals erred in refusing to consider assignments from 4 to 10, inclusive, made in that court, predicated upon the trial court's refusal to give certain special requests in charge to the jury, and in refusing to consider assignment 15, based upon an alleged erroneous instruction contained in the trial court's general charge.

We are of the opinion that the Court of Civil Appeals did not commit error in refusing to consider these assignments. The charge of the court was not made a part of the bill of exceptions. Neither were the special requests referred to in said assignments. They are only set out in the motion for a new trial. This does not make them a part of the record. The motion for a new trial is not the action of the court. It is only the statement of the mover, and the facts therein cited may or may not be true. Frazier v. State, 117 Tenn., 430, 100 S. W., 94. The charge of the court not having been made a part of the record, this court will presume that the charge covered the law of the case and was.correct. State v. Robinson, 106 Tenn., 184, 61 S. W., 60; Railroad v. House, 96 Tenn., 552, 35 S. W., 561; Temple v. State, 127 Tenn., 429, 155 S. W., 388.

By their second assignment of error the administrators complain of the action of the Court of Civil Appeals in overruling their fourteenth assignment, made in that court, which challenged the correctness of the trial court's ac

Tennessee Cent. R. Co. v. Vanhoy.

tion in refusing to allow them to withdraw their plea of not guilty and file a plea to the jurisdiction of the court on the ground that they were citizens of Putnam county, and were sued in Cumberland county.

A sufficient answer to this assignment is that no plea to the jurisdiction of the court was tendered with the motion, or, if tendered, it is not made a part of the record. Furthermore, we are of the opinion that to have allowed such a plea to have been filed would have been error. Service of process having been had on the Tennessee Central Railroad Company in Cumberland county, jurisdiction of the administrators could be acquired by the issuance of a counterpart summons to any county in the State. Therefore, if the defendants had been permitted to file said plea, it could not have availed them anything.

It is next assigned as error by the administrators that the Court of Civil Appeals erred in not holding that the trial judge committed error in permitting the jury to take out and have before it the maps and photographs offered in evidence while they were considering their verdict.

A sufficient answer to this assignment of error is that the bill of exceptions fails to disclose that any such thing occurred. This only appears in the motion for a new trial, and therefore the assignment cannot be considered.

It is also insisted by the administrators that the Court of Civil Appeals erred in not holding that the trial judge committed error in not directing a verdict in favor of the administrators, because there was no evidence tending to

Tennessee Cent. R. Co. v. Vanhoy.

show that their intestate was guilty of any negligence; but, if he were, the undisputed evidence shows that Mrs. Vanhoy was guilty of contributory negligence that would bar the plaintiff's right to recover.

We are of the opinion that this assignment of error is not well grounded. We think the question of Mr. Hitshew's negligence, as well as the question of the contributory negligence of Mrs. Vanhoy, were questions properly determinable by the jury. We do not think that this court would be warranted in saying, as a matter of law, that Mr. Hitshew was not guilty of negligence in driving his car upon the railroad track at this highly dangerous crossing without stopping, looking, or listening for an approaching train. He was in charge of the automobile. The proof shows that he was an experienced driver, and that he had passed over this very crossing that morning before the collision occurred in the afternoon. He was necessarily familiar with the dangerous character of the crossing, and, in view of its highly dangerous character, it was incumbent upon him to exercise due care, as the driver of the automobile, for the safety of his guests riding with him.

One who invites another to ride in his automobile must exercise ordinary care not to increase the danger of such undertaking, or create a new danger, and will be liable to the person so invited for injuries caused by his failure thus to exercise ordinary care for his guest's safety. Patnode v. Foote, 153 App Div., 494, 138 N. Y. Supp., 221; Beard v. Klusmeier, 158 Ky., 153, 164 S. W., 319, 50 L. R. A. (N. S.), 1100. In that case the court said:

Tennessee Cent. R. Co. v. Vanhoy.

"We think the rule there stated [in Patnode v. Foote, supra] is the correct rule, and that appellant's duty to the appellee was to use ordinary care not to increase the danger of her riding with him, or to create any new danger. In the case at bar, appellant is charged with creating a new danger by his fast and reckless driving. As said in the Foote Case, supra, one who invites another to ride is not bound to furnish a safe vehicle or a safe horse or a safe automobile; but if the driver fails to use ordinary care in driving the automobile, he thereby creates a new danger for which he is liable. In requiring the appellant to exercise ordinary care in the operation of his car, and authorizing a recovery against him in case he ran his car at an unreasonable speed, thereby causing the injury, the trial court substantially followed the rule above indicated."

In Fitzjarrell v. Boyd, 123 Md., 497, 91 Atl., 547, it was contended that an invited guest could recover from the owner of an automobile only if the injury resulted from the gross or willful negligence of the owner. The court, however, refused to take this view and adopted the reasoning in Patnode v. Foote, and Beard v. Klusmeier, and held that the owner owed his invited guest the duty to use ordinary care not to increase the guest's danger or to create any new danger, and that a recovery might be had for an injury to the guest caused by an attempt, against the latter's protest, to pass another vehicle, by reason of which the car skidded and overturned.

In Perkins Adm'x, etc., v. Galloway, 194 Ala., 265, 69 South, 875, L. R. A., 1916E, 1190, it was held that the owner of an automobile is liable for injury through the