Caldwell v. Hodges , 18 Tenn. App. 355 ( 1934 )

ON PETITION FOR A REHEARING. Howell Caldwell, defendant below, and hereinafter called defendant, appealed in error to this court from a judgment of the circuit court of Maury county for $2,000 and costs against him and in favor of Mrs. Malcy Hodges, administratrix of the estate of Mary Frances Freeman, deceased, hereinafter called plaintiff.

On a former day of the present term an opinion was filed and a judgment entered overruling defendant Caldwell's assignments of error and affirming the judgment of the circuit court.

A petition for a rehearing was filed in due season by defendant Caldwell, through which he insists that his first, second, and seventh assignments of error should have been sustained and plaintiff's suit dismissed, or, at any rate, the judgment should have been reversed and a new trial granted for the error pointed out by his fourth assignment of error.

After a careful and extended consideration of the petition to rehear and the supporting brief, we are satisfied with the conclusions reached in our former opinion. It would serve no useful purpose to repeat or elaborate the statement of our reasons and the authorities upon which we based our opinion that there was no reversible error on the record and that the judgment should be affirmed.

Petitioner insists that our holdings that defendant Caldwell's demurrer to plaintiff's declaration and his motion for peremptory instructions were properly overruled are in conflict with the unreported opinion of this court (by Judge DeWitt) in the case of Mrs. Mattie Haney et al. v. J.W. Thomason, Administrator, Davidson Law, at Nashville, July 2, 1931.

The case just mentioned (to which we will refer as the Haney Case) was an action by the administrator of Mrs. Ora Lee Thomason to recover damages for her alleged wrongful death as a guest of Mrs. Mattie Haney in the latter's automobile while it was being driven southwardly by her son Landon Haney on state highway No. 1, near Una, in Davidson county, Tennessee. As the Haney car approached the place of the accident, two Ford Roadster automobiles owned by the Southern Bell Telephone Telegraph Company were parked (one immediately in front of the other) on the western shoulder of the highway, facing southward. These two Ford cars were being used and operated by the Southern Bell Telephone Telegraph Company in repairing its telephone line which ran along the western side of the highway. As the Haney car, a Dodge Sedan, approached, an employee of the telephone and telegraph company (R.A. Newbill) undertook to turn the front or southernmost of the two Ford cars across the highway with the purpose of driving northward toward Nashville. When the left front wheel of the Ford car reached a point about 6 feet over on the highway, the driver of the Haney car, in order to avoid a collision, turned his car to his left and toward the east side of the highway, and it went across the east shoulder and into a ditch, striking the post of an electric power line and a fence post, and fatally injuring Mrs. Thomason.

In the circuit court the administrator of Mrs. Thomason obtained a verdict, and judgment thereon, for $12,000 against Mrs. Mattie Haney, Landon Haney, the Southern Bell Telephone Telegraph Company and R.A. Newbill. On appeal in error, this court affirmed the judgment against the Southern Bell Telephone Telegraph Company and R.A. Newbill, but reversed the judgment and dismissed the suit against Mrs. Haney and Landon Haney — holding that the trial court should have sustained the motion of the Haneys for peremptory instructions, for the reason that, upon the undisputed evidence, the driver of the Haney car was not guilty of actionable negligence.

In the Haney Case, the plaintiff administrator sought to predicate his action upon averments of concurring negligence of the driver of the Haney car and Newbill, the driver of the telephone and telegraph company's car; and in the instant case the plaintiff-administratrix based her action upon concurring negligence of defendant Howell Caldwell, the driver of the Buick car and defendant Lineberger, the driver of the Ford car, but the facts of the two cases are essentially different in their relation to the question of negligence of the driver of the Haney car and the question of the negligence of the defendant Caldwell.

The facts upon which this court rested its conclusion that Landon Haney was free from actionable negligence are disclosed by an excerpt from the opinion in the Haney Case as follows:

"Newbill testified that the Haney car was going along the highway at a rate of speed of about forty-five miles per hour; yet he also said he saw the car coming toward him 800 feet or more away at a moderate rate of speed. He admitted that his Ford car was from eighteen inches to two feet off the traveled highway as the Haney car was coming, until he began to turn across the highway. He did not claim and there is no evidence that he gave any signal of his intention thus to turn his car. He stopped it on the highway directly in the path of the Haney car, although he had seen that car coming toward him some distance away. All of the other witnesses testified that the Haney car was traveling at a speed of about thirty-five miles per hour. The accident occurred at a point about 400 feet south of the Una School House. Just north of this school house there is a slight curve in the road, and then the road is straight to the scene of the accident, 600 to 800 feet, and the view of persons on the highway is straight for a distance of about 1,000 feet. When the Haney car rounded the curve near the school house Landon Haney noticed a Ford roadster, used as a truck, parked to his right off the side of the traveled way about 300 or 400 feet beyond the school house, headed toward Murfreesboro. The truck which Newbill soon thereafter undertook to drive across the highway was a few feet ahead of this truck and off the highway eighteen inches to two feet as aforesaid. These trucks were stationary when they were seen by Landon Haney. They were parked at that place while the employees of the Telephone and Telegraph Company were engaged in doing some work on a telephone line at a pole near the cars on the right hand side of the highway. On the night before there had been a heavy rain and although the concrete highway was dry, the shoulders and grass plots on each side of the highway were wet and slick.

"As the Haney car approached the place near which the Ford Trucks were parked, there was no movement of the trucks or other indication that either of them was about to be moved or driven onto the concrete highway. Had they remained stationary the Haney car would have passed on without danger to any one, and it was coming on the right hand side of the highway. The paved portion of the highway is twenty feet wide. Landon Haney did not slacken his rate of speed. Mr. and Mrs. H.N. Clouse, of Sparta, Tennessee, were coming toward the same place on their way to Nashville. They were but a very short distance from the place when the accident occurred. Mrs. Clouse was driving their car. She testified that the Ford car or truck was turned right into the highway when the other car was almost at him; that (snapping her fingers) `he shot out like that, he turned out just as the other car approaching got there.' She said that he turned out suddenly as the Haney car was right at that place, that the Haney car went off the highway to the left, that it almost struck the Ford car. She said that if Landon Haney had turned his car to the right instead of to the left he would have struck the other Ford car. Mr. Clouse testified that the Haney car was about twenty to thirty feet away when the Ford car was turned into the highway. These were witnesses for the plaintiff. Mrs. Steele, another witness for the plaintiff, testified that when the Haney car was about thirty-five feet from the point opposite the Ford cars she saw Landon Haney straighten up and grip the steering wheel, but she did not testify otherwise as to the distance from the Haney car to the Ford car when it was turned into the road. Mrs. Mattie Haney, who was on the front seat of her car, testified that when she saw the Ford car move, her car was twenty-five feet away from it, that the Ford car came out suddenly and turned directly in front of the Haney car. Landon Haney testified that when he turned the curve he noticed the parked truck on the side of the road and did not see any movement of the truck until he was about thirty feet from it. He said that he did not sound a whistle because he did not have time to take his hand off the steering wheel. He said that he did apply the brake, and it was in good condition. In that emergency he turned his car to the left. There was sufficient room on the left to pass but the rear wheel struck the mud and wet grass and the car skidded over into the ditch. It is immaterial that Haney did not sound his horn at that point, for Newbill admitted that he knew that the Haney car was coming.

"There is no substantial evidence contradicting these statements that the Haney car was about thirty feet from the point opposite the Ford car when it turned into the highway, and that whatever might have been its rate of speed there would have been no accident if the Ford car had not been turned across the highway. It is insisted that Landon Haney should have anticipated that either of these cars so parked off the highway might at any moment be turned onto the highway. It would be an unreasonable imposition of duty upon a motorist traveling on the proper side of the highway, with a clear road in front of him, that when he should see another car parked clear off of the highway he could not presume that it would remain stationary until he had passed it. In Lee v. Donnelly, 95 Vt. 121, 113 A., 542, it was held that a motorist who observed within 200 feet away the car of another parked on the righthand side of the street, has the right to presume, after having given notice of his approach, by sounding his horn when within 100 feet of such car, and on failing to hear or see any intentions of a sign to move it, that it will remain stationary until he has passed it. Now while Landon Haney did not blow his horn this indisputably had nothing to do with the accident. The approach of his car was well known to Newbill. In Collins v. Desmonds, 1 Tenn. App. 54, a case relied upon for defendant in error, the plaintiff turned across a highway to enter a cross road, having no knowledge of an automobile approaching from the rear. It was held that it was not negligence per se for him thus to drive his horse and wagon across the highway under the circumstances; the defendant's agent having approached him so closely at a rapid rate of speed as to make a collision possible. This rule of that case is not applicable to the case before us, for Newbill had knowledge of the approach of the Haney car. It is not applicable to sustain the liability of Landon Haney and Mrs. Mattie Haney.

"In our opinion the jury could not reasonably infer that the proximate cause of the accident and injuries was other than the negligent act of Newbill in turning his Ford car onto the highway directly in the path of the on-coming car. The evidence, uncontradicted, shows that Landon Haney was driving his car on the right side with a clear and unobstructed road ahead of him, and that he had no warning of the intention to place the Ford car in his pathway until such an emergency arose as to compel him to turn his car over suddenly to the left in order to avoid a disastrous collision, that under the circumstances the jury could not reasonably infer that the rate of speed at which Landon Haney was driving his car proximately contributed to the accident and injury. In other words, the speed of the car would not have endangered life or property if the Ford car had not been turned across the highway. The only reasonable inference is that the turning of the Ford car onto the highway was the proximate cause of the accident. It is the settled law that an injury which could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either the remote cause, or no cause whatever of the injury; that one who in a sudden emergency acts according to his best judgment, or, who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not charged with negligence. These rules are set forth in 22 R.C.L., page 21, and 20 R.C.L., page 29, respectively, and were applied in Moody v. Gulf Refining Co., 142 Tenn. 280, 218 S.W. 817, 8 A.L.R., 1243. This doctrine as to the conduct of a party in a sudden emergency is well settled in Tennessee. See also Railroad v. Gurley, 12 Lea, 47; Marble Co. v. Black, 89 Tenn. 118, 14 S.W. 479; Railroad Co. v. Cooper, 109 Tenn. 308, 70 S.W. 72.

"Taking the strongest view of the material determinative evidence tending to support the liability of Landon Haney and Mrs. Mattie Haney, we are of the opinion that it does not afford any substantial basis for a verdict against them. The motion for peremptory instructions in their favor should therefore have been sustained."

In the case now before us, our former opinion points out certain facts, shown by substantial evidence, as follows:

"The undisputed proof in the instant case is that the Riverside Filling Station was brilliantly illuminated by electric lights above and around the roof and within the glass front, to such an extent that the highway in front, for a distance of 100 feet in either direction, and the `plaza' around the filling station, were as `light as day.'

"Defendant Caldwell entered the Jackson Highway from Sixth Avenue, 475 feet south of a point in the highway opposite the center of the filling station, and, as the highway was straight and very slightly upgrade all the way from Sixth Avenue to the point of the collision (fifty feet north of the center of the filling station), he could see automobiles and other objects within the zone of the filling station lights from the time he entered the highway and turned his car northward.

"There is no evidence of the distance that the lights on defendant Caldwell's car `would carry or reveal an object ahead' in a dark place, but such evidence would not have been relevant to the issues, for the reason that defendant Caldwell could see the filling station and objects on the highway in front, and on the intervening space between the filling station and the highway, without the aid of the lights on his car, and when he came within the zone of the lights of the filling station (150 feet from the point of the collision), the lights on his car were necessarily ineffective because of the more powerful lights at the filling station, which latter lights revealed objects ahead of him on the highway and on the adjoining `plaza' of the filling station more clearly than the lights of his car would have done if the filling station lights had not been burning. . . .

"Plaintiff's intestate, Mary Frances Freeman, was riding as the guest of Murphy Lineberger, the driver of the Ford car, and the negligence of Lineberger was not imputable to her. Stem v. Interurban Railway, 142 Tenn. 494, 508, 221 S.W. 192. She lived in a distant county and was a visitor in Columbia. She was wholly unfamiliar with the Riverside Filling Station and its surroundings. Upon the facts of this record, the question of her contributory negligence was for the jury to determine. Dedman v. Dedman, 155 Tenn. 241, 291 S.W. 449, and other cases there cited.

"The Riverside Filling Station was a place of good repute for the sale of gasoline and oil for automobiles and for serving cold drinks, lunches and `midnight suppers,' and had a large patronage. In addition to the people visiting the Riverside Filling Station in automobiles, the Jackson Highway was a much-traveled north and south thoroughfare. These facts and the conditions surrounding the filling station were admittedly well known to defendant Caldwell.

"There is evidence that the Ford car in which deceased was riding was driven westward from the parking space at the filling station across the highway for a distance of twenty-three feet, at a speed of six to eight miles per hour, in view of defendant Caldwell (if he was looking ahead) before the collision. More than one-half of the Ford car had crossed the `white line' which marked the center of the highway when defendant Caldwell's car struck the left rear wheel of the Ford with such force and violence that the Ford car was thrown twelve or fifteen feet, and its occupants were thrown about thirty-six feet and against an embankment on the west side of the highway. There was evidence of `skid marks' on the highway, indicating that defendant Caldwell had applied his brakes and his car had skidded twenty-five or thirty feet before it struck the rear of the Ford, which was near the center of the highway.

"There was testimony that defendant Caldwell stated later that he was running at the rate of forty miles an hour at the time he applied his brakes thirty feet from the point of the collision. The jury could look to the effect of the impact as a circumstance to be weighed in asecrtaining the rate of speed of Caldwell's car. Collins v. Desmond, 1 Tenn. App. 54, 60; Berry on Automobiles (6 Ed.), section 1287.

"There was ample room on Caldwell's right side of the highway for his car to have passed to the rear of the Ford, and the only explanation offered of his failure to thus pass the Ford and avoid a collision is that he was so close to the Ford when he saw it that all he could do was to apply his brakes, and that the situation thus presented constituted an `emergency' or `sudden peril' which excused his failure to avail himself of the opportunity to pass to the rear of the Ford.

"Defendant Caldwell must be held to have seen what he could have seen if he had been maintaining a proper lookout ahead, and it was for the jury to say whether or not he was negligent as charged, and whether such negligence was the proximate cause of the collision and the resulting death of plaintiff's intestate. Berry on Automobiles (6 Ed.), section 188."

The contrast between the facts of the Haney Case and the facts of the instant case is, we think, obvious.

The Haney car was within thirty feet of the Ford car before there was anything in the situation and circumstances which would cause a person of ordinary prudence to anticipate that the Ford car would be driven across the pathway of the Haney car.

In the instant case, defendant Caldwell knew that parties in automobiles from Columbia frequently visited the Riverside Filling Station at night, and that, when they started on their return journey to Columbia, their entrance upon the highway would be attended with danger unless care was exercised both by them and by passing automobilists. A duty was therefore imposed both upon Caldwell and Lineberger to exercise such care as an ordinarily prudent person would exercise in such a situation.

There was substantial evidence from which the jury could find that the illumination around the Riverside Filling Station was such that defendant Caldwell could see automobiles standing in front of the filling station from the time he entered the Jackson highway, about 525 feet south of the point of the collision, and, if looking, could have seen, as he approached, the Lineberger car move northward on the parking space and turn westward onto the highway. It is true that there was evidence of the presence of a standing automobile on the parking space which might have obscured Caldwell's view of the Lineberger car for a brief period as it made the turn toward the highway, but there is proof that, from the point where it "nosed" into the highway from the parking space, the Lineberger car moved westward across the highway for a distance of twenty-three feet at a speed of six to eight miles per hour in view of defendant Caldwell (if he was looking ahead) before the collision occurred.

Assuming that Caldwell's car was moving at a speed of forty miles an hour (although the jury might have inferred from the proof that he was moving at a greater speed), it is seen that his speed was at least five times as great as that of the Lineberger car; so that, while the Lineberger car was moving twenty-three feet across the highway (within the range of Caldwell's vision), the Caldwell car moved 115 feet. But defendant Caldwell admitted that he did not apply his brakes and attempt to check the speed of his car until he was within thirty feet of the Lineberger car.

Obviously, we think, there is no similarity between the essential facts of the Haney Case and those of the instant case, and our ruling in the Haney Case does not afford a precedent for the case now under consideration.

The petition for a rehearing is denied and dismissed at the cost of the petitioner.

Crownover and DeWitt, JJ., concur.