Boyd v. City of Knoxville

• Decision Date: 05 May 1937
• Parties: BOYD et ux. v. CITY OF KNOXVILLE.
• Court: Tennessee Supreme Court

104 S.W.2d 419

171 Tenn. 401

BOYD et ux. v. CITY OF KNOXVILLE.

Supreme Court of Tennessee.

May 5, 1937

Error to Circuit Court, Knox County; L. H. Carlock, Judge.

Action by James K. Boyd and wife against City of Knoxville. To review a judgment of the Court of Appeals affirming a judgment in favor of the defendant, the plaintiffs bring certiorari.

Petition for certiorari denied.

Hartman Hartman & Doughty, of Knoxville, for plaintiffs in error.

Wayne Parkey and Frank Montgomery, both of Knoxville, for defendant in error.

McKINNEY Justice.

James K. Boyd and his wife were injured when their automobile ran into the rear end of a large garbage truck owned and operated by the City of Knoxville. Each instituted suits against the city to recover damages. The cases were heard together. At the conclusion of the plaintiffs' proof, the trial court sustained motions by the city for directed verdicts, and the suits were dismissed. Upon appeal, the judgments of the trial court were affirmed by the Court of Appeals.

The accident occurred at 2:30 a. m. on December 8, 1935, on West Cumberland street in the City of Knoxville. The truck was engaged in taking up garbage and trash, and had stopped about 6 feet from the curb. Its taillight was not burning. Boyd and wife were driving west to their home, and were trailing another automobile some 25 or 30 feet. Boyd was driving at the rate of 20 or 25 miles per hour, was looking ahead, his lights were burning brightly, and he had his car under control. The night was rainy and foggy. The car in front of Boyd made a sharp swerve to the left, barely missing the garbage truck. Boyd thereupon observed the truck when within 10 feet of it, applied his brakes, and braced himself for the impact. There was no way to avoid the collision. Mrs. Boyd was seriously injured, but Boyd's injuries were not so great. It is conceded that the city in collecting garbage is engaged in a governmental function for which it is not rendered liable by its employees' negligence.

City of Nashville v. Mason, 137 Tenn. 169, 192 S.W 915, L.R.A.1917D, 914. This rule has no application, however, where the city commits a nuisance, and counsel for plaintiffs contend that these cases come within the exception just noted. Counsel fail, however, to give effect to the distinction pointed out by this court in Burnett v. Rudd, 165 Tenn. 238, 54 S.W.2d 718, that in order to hold the city liable for creating a nuisance in the performance of a governmental function, it must have committed some affirmative act, as distinguished from the negligence of its employees resulting in injury to a citizen, and decisions of this court, illustrative of such affirmative action by the city, were cited in that case. In the instant case the city did not authorize its employees to park its truck out in the street without a taillight, and it was guilty of no affirmative act. The accident was due solely to the negligent acts of the employees of the city, for which the latter is not liable.

Counsel for plaintiffs insist that City of Knoxville v Lively, 141 Tenn. 22, 206 S.W. 180, 181, is a direct authority...