Wyler, Ackerland & Co. v. Blevins.

FROM SCOTT.

Appeal from the Chancery Court of Scott County.— HUGH G. KYLE, Chancellor.

LUCKY, SANFORD & FOWLER, and E. G. FOSTER, for Wyler, Ackerland & Co.

J. E. FULTON and YOUNG & PARKER, for Blevins.

TEMPLETON, LINDSAY & TEMPLETON, for Chandler, Garnishee.

MR. JUSTICE NEIL delivered the opinion of the Court. Heretofore in this cause an execution was is sued, and by way of satisfying it a garnishment notice was issued, summoning G. W. Chandler to appear and answer touching his indebtedness to the defendant. He filed an answer which was indeterminate, indicating that he was probably not indebted to Blevins because of cross-claims of an unsettled amount, but also conveying the implication that an ascertainment of the amount of the cross-claims might probably leave him indebted to some amount. A motion is now filed to set aside this answer, accompanied by an affidavit of the original defendant, Blevins, showing that the cross-claims are now capable of exact ascertainment.

We have numerous cases in this State (cited in a note to section 4831 of Shannon's Code) holding that the an

113 Tenn-34

Wyler, Ackerland & Co. v. Blevins.

swer of the garnishee is conclusive. The section of the Code, however, referred to, changes the rule as to amounts less than $1,000, and declares that the answer shall not be held conclusive as to such amounts.

The plaintiff in the execution is not bound by the answer in the present case, the amount being less than $1,000, and it is not necessary to strike the answer from the files. The proper practice, under the facts now developed, is to summon the garnishee before the court for a new examination. Jones v. Pearce, 12 Heisk., 281, 287; Moore v. Green, 4 Humph., 301; Pickler v. Rainey, 4 Heisk., 340; Foster v. Saffell, 1 Swan, 90. If necessary to a full determination of the matter, other evidence may be heard. Shannon's Code, section 4831. This court may conduct such an examination in aid of its final process. Newman v. Justices, 1 Heisk., 787; McIntosh v. Paul, 6 Lea, 45; Dodds v. Duncan, 12 Lea, 733; Shannon's Code, section 6336.

The actual examination, of course, will be had before the clerk of the court on reference made to him by the court.

The motion to strike the answer from the files is denied, but the plaintiffs have leave to summon Chandler before the court for further and fuller examination, if they so desire. In that event the examination will be taken before the clerk of the court in the presence of the counsel of both parties-that is, of the plaintiff and of the garnishee also of the debtor defendant if he desire to intervene. Smith v. Leonard, 1 Tenn. Cas., 604, 606.

Elec. Railway Co. v. Moore.

ELECTRIC RAILWAY COMPANY v. MOORE.

(Knoxville. September Term, 1904.)

NEGLIGENCE. Street railroad company not liable for injury caused by telephone poles in public highway.

The law imposes no duty upon a street railroad company to abate a nuisance on land not belonging to it, and over which it has no control, and, therefore, it is not chargeable with negligence in permitting or not objecting to, the erection of a telephone pole in a public highway so near its track as to be dangerous to its employees operating its cars.

Cases cited and approved:

Lucas v. St. Louis R. R. Co. (Mo.),

73 S. W., 589, 61 L. R. A., 452.

FROM HAMILTON.

Appeal in error in the Circuit Court of Hamilton County.-M. M. ALLISON, Judge.

BROWN and SPURLOCK, for Electric Railway Company.

J. T. MATTHEWS and JOHN H. EARLY, for Moore.

Elec. Railway Co. v. Moore.

MR. JUSTICE WILKES delivered the opinion of the Court.

This was an action for damages against the Chattanooga Electric Railway Company and the East Tennessee Telephone Company. There was a trial before a jury in the court below, and a verdict and judgment for $200 against the electric railway company. The suit as to the telephone company was dismissed before trial. The electric company has appealed, and assigned errors.

The plaintiff was a conductor on the electric company's cars, and was at the time of the injury leaning out of the rear of his car on one side, to see whether his trolley wheel was properly adjusted upon the speed wire, his car at the time being in motion, when his head came in contact with a telephone pole placed about thirtyfour inches from the rail of the car line and fourteen inches beyond the side of the coach as it passed along the track. The theory upon which the recovery was had was that the electric company was negligent in allowing the poles of the telephone company to be placed so near its rails as to be dangerous to its employees in operating its cars. The conductor knew of the presence and proximity of these poles, and had seen them often, but evidently did not have them in mind when he was struck. The proof tends to show that he might have adjusted his trolley wheel from the rear center of the car platform, and without leaning out beyond its side, and would have been perfectly safe in so doing. His back was toward the pole when struck.

Elec. Railway Co. v. Moore.

It is assigned as error that the court, in substance charged that, if the electric company permitted the telephone company to erect its poles so near to the track as to be dangerous to employees in operating the cars, or permitted them to so remain, and this was the proximate cause of the injury, the electric company would be liable.

The exact charge complained of is as follows:

"If this pole was erected by the telephone company, which is not a defendant in this suit, and if it was placed at a dangerous proximity to the railroad, and if the defendant company negligently permitted this telephone company, without objection on its part, to erect this pole so dangerously close to its track that it was dangerous to employees operating cars in that situation, and if the defendant railway company negligently permitted this post to remain in this dangerous condition, if you should find that it was in a dangerous condition (that is, dangerously close to the track; so close to the track that it was dangerous to employees on the cars in the discharge of their duties; that there was danger from this post to the employees), and if the plaintiff's injury was a direct and proximate result of the negligence of the defendant in permitting this pole, without objection, to be placed dangerously near the track, and it remained there for some two years or more, then this defendant company would be liable.”

We think this charge would be substantially correct if the telephone poles had been placed upon the premises