Atchley v. Sims, 1.

• Decision Date: 17 December 1938
• Docket Number: No. 1.,1.
• Citation: 128 S.W.2d 975
• Parties: ATCHLEY v. SIMS.
• Court: Tennessee Supreme Court

Page 975

128 S.W.2d 975

ATCHLEY v. SIMS.

No. 1.

Court of Appeals of Tennessee, Eastern Section.

December 17, 1938.

Certiorari Denied by Supreme Court April 1, 1939.

Appeal in Error from Circuit Court, Sevier County; W. P. Monroe, Judge.

Action by J. Carroll Sims against P. M. Atchley, wherein defendant brought cross-action, for injuries and damages sustained in intersectional automobile collision. Defendant's cross-action was dismissed and verdict for $2,500 was returned for plaintiff. From judgment for plaintiff, after remittitur of $500, defendant appeals in error.

Plaintiff's motion to dismiss appeal denied, defendant's motion to strike certain paper from record sustained, and case remanded for new trial.

O. M. Connatser, of Sevierville, and T. C. Drinnen, of Maryville, for plaintiff in error.

A. M. Paine, B. A. Townsend, and Robertson & Wynn, all of Sevierville, for defendant in error.

McAMIS, Judge.

This action arose out of an automobile collision which occurred within the corporate limits of the Town of Sevierville on September 11, 1937. Both parties sustained personal injuries and both automobiles were damaged.

Sims instituted suit in the Circuit Court of Sevier County on October 27, 1937, charging that defendant Atchley negligently and carelessly operated his automobile from a side road upon a main thoroughfare known as State Highway Number 35 and attempted to make a left hand turn without stopping or giving any signal to warn plaintiff who was driving his automobile upon Highway 35 approaching defendant from defendant's left. It was further charged by an amendment to the declaration that defendant was operating his automobile at the time of the collision in violation of a public ordinance of the Town of Sevierville prohibiting the operation of automobiles at a rate of speed in excess of thirty miles per hour.

The case for defendant Atchley, set up by a plea of not guilty to the declaration of Sims and a cross-action in his own behalf against Sims, is to the effect that Atchley approached said highway on which Sims was traveling at a speed of about ten miles per hour; that he looked to his left before entering said highway and saw Sims a distance of approximately three hundred feet away; that he believed he had time to cross said highway and in fact had succeeded in doing so when Sims who, according to the proof introduced by Atchley, was traveling at a speed of from forty-five to fifty miles per hour in violation of said City ordinance, negligently and unlawfully operated his said automobile upon the left side of the highway in the direction in which he was going causing it to collide with the Atchley car near the curb on that side of the highway.

The proof is conflicting as to the speed of the two cars and their positions upon the highway at the time of the collision. The trial court submitted to the jury the issue of defendant Atchley's negligence in the original action but after the defendant Atchley had testified that he did not stop before entering upon Highway 35, upon its own motion, in the absence of the jury, stated that Atchley was guilty of contributory negligence as a matter of law in so doing and that his cross-action would stand dismissed. Atchley was not permitted to introduce further proof to establish his alleged cause of action. The jury returned a verdict in favor of Sims for $2,500 which was approved by the trial judge subject, however, to a remittitur of $500 and judgment was accordingly entered for $2,000. From this judgment Atchley has appealed in error to this court and assigned errors by which he insists that there is no evidence to support the verdict of the jury; that the evidence preponderates against the verdict; that the verdict is excessive; that the court erred in dismissing the cross-action without permitting him to develop his case by the introduction of proof; and that the court erred in declining two special requests tendered in his behalf.

Counsel for Sims have moved the court to dismiss the appeal because it is an appeal from the action of the court in overruling the motion for a new trial and not from the judgment itself. The cases of Louisville & N. Railroad Co. v. Ray, 124 Tenn. 16, 134 S.W. 858, Ann.Cas.1912D, 910; Cobble v. International Agricultural Corp., 2 Tenn.App. 356; and Briggs v. Clawson Bros., 3 Tenn.App. 146, are relied upon in support of this motion.

The judgment and the order of the court overruling the motion for a new trial are incorporated in a single minute entry concluding with the following: "To which action of the court the defendant accepts and prays an appeal to the next term of the Court of Appeals at Knoxville, Tennessee; which appeal is granted, etc." Although the judgment itself is contained in a separate and preceding paragraph from the language we have quoted, we think the exception preserved and the appeal prayed by the defendant may be taken to relate to the judgment preceding the praying and granting of an appeal as well as to the order overruling the motion for a new trial. The action of the court excepted to and from which an appeal is prayed is not limited to the court's action in overruling the motion for a new trial and, for this reason, we think the cases cited are not controlling. The motion is, accordingly, overruled.

Counsel for Atchley have also moved the court to strike a purported copy of the Town Ordinance of the Town of Sevierville providing a speed limit of thirty miles per hour. This motion must be sustained for the reason that the paper referred to does not appear to have been filed in the court of trial. It is identified by the trial judge but upon what date and whether within the time allowed does not appear. However, the striking of this document does not affect the result upon this appeal for the reason that both parties alleged...