Roddy Mfg. Co. v. Dixion , 21 Tenn. App. 81 ( 1936 )

On Petition to Rehear and on Motion to File Additional Assignment of Error.

Counsel for Roddy Manufacturing Company and S. M. Delap have filed a petition to rehear seeking a reversal of our previous bolding that there is material evidence to support tbe verdict of tbe jury as to said petitioners but that there is no material or substantial evidence of negligence upon tbe part of Blount Ice Company and Roy Cooper which is within the scope of the pleadings.

We gave full consideration to this case upon the original hearing when it was orally argued and exhaustively briefed by the respective parties. We find nothing in the petition to rehear which, in our opinion, could warrant the court in taking the case from the jury and directing a verdict in behalf of petitioners. Furthermore, we cannot be influenced by the fact that a heavier burden is thereby cast upon petitioners by reason of their said co-defendants being exonerated. If we were correct in holding that there is no material evidence of negligence upon the part of the driver of the ice truck which might have proximately contributed to plaintiff’s injury, it then becomes the duty of the court to direct a verdict in behalf of the ice company and Cooper, regardless of the fact that the amount for which petitioners are liable may be thereby increased.

A further consideration of this question has led us to conclude that we did not err in so holding. The reasons underlying this holding were set out in our previous opinion, wherein we attempted to point out the impossibility of both trucks being upon their proper side of the highway considering its width at the point of collision.

The only testimony which tends to place the Blount Ice truck upon its left side of the highway is that of Delap, but this testimony cannot be seized upon as material evidence to support a verdict against the lee Company and Cooper because sueb a theory .of negligence is not witbin the scope of any of the charges of negligence set out in the declaration as against said defendants. We assume, therefore, that the jury and trial judge found said defendants liable under the only charge of the declaration against them which the evidence tended in any way to support, namely, failure to sound the horn. For the reasons set out in our previous opinion, we do not think there is any material and substantial evidence that ‘such omission contributed proximately to plaintiff’s injury and that the circuit judge should have directed a verdict in behalf of said defendants at the close of all the proof.

We find the petition to rehear without merit, and a rehearing is accordingly denied.

Roddy Manufacturing Company and S. M. Delap have moved the court for leave to file additional assignments of error. This motion was not filed until after the hearing and not until after final determination of the case in this court and comes too late. To adopt such a practice would result in endless confusion and delay and require the court to try cases piecemeal. The motion is accordingly overruled.

Portrum and Ailor, JJ., concur.