Carman v. Huff

Citation227 S.W.2d 780,32 Tenn.App. 687
PartiesCARMAN v. HUFF.
Decision Date22 August 1949
CourtCourt of Appeals of Tennessee

Certiorari Denied by Supreme Court Dec. 10, 1949. [Copyrighted Material Omitted]

Frantz, McConnell & Seymour, of Knoxville, for plaintiff in error.

Hodges & Doughty, of Knoxville, for defendant in error.

McAMIS Judge.

Mrs. Maude Huff instituted this suit against Patrick Henry Carman administrator of the estate of J. T. Carman, deceased, to recover for personal injuries sustained while riding as a guest in the automobile of deceased. Mr. Carman, who was driving, lost his life in the same accident and, as indicated, process was served upon his administrator. Process was also served upon M. L. Wilkerson, the owner of the truck with which the Carman car collided. No process was served upon Arlie R. Smithers who was driving the truck for Wilkerson though Smithers was also made a party defendant. The parties will be referred to by name or as plaintiff and defendants, respectively, as in the trial court.

The collision occurred on May 1, 1947, at the interection of U.S. Highway 11-W and Chilhowee Drive, a short distance east of Knoxville. Highway 11-W at the point of intersection with Chilhowee Drive runs east and west. On the east it is straight for a distance of one-half mile or more and is slightly down grade until it reaches the intersection. The Wilkerson truck loaded with lime, was traveling west on Highway 11-W and approaching the intersection at a speed of 35 or 40 miles per hour.

Chilhowee Drive, a county highway, runs generally north and south. The approach to Highway 11-W is level and straight. There is material evidence that, prior to the accident, a stop sign had been erected on Chilhowee Drive requiring north bound traffic on it to come to a stop before entering the intersection. The exact location of the sign, whether immediately at the corner of the intersection or further south on Chilhowee Drive, does not appear from the evidence. The Carman car, a 1929 Ford coupe, approached the intersection going north on Chilhowee at a speed of approximately 15 miles per hour. It proceeded into the intersection without stopping or slowing its speed and collided with the truck near the center of Highway 11-W. Both vehicles finally came to rest in a field south of the Highway at a point 50 steps or more west of the intersection, with the truck resting on top of the car.

The declaration charges that the deceased Carman negligently failed to heed the stop sign as required of him and proceeded into the intersection at a reckless, dangerous, and negligent rate of speed and that the Wilkerson truck was also being operated at an excessive rate of speed without due care and circumspection and without keeping a lookout ahead. The jury returned a verdict for $3,500 in favor of Mrs. Huff and against Carman, administrator, against whom judgment was rendered for that amount. The jury returned a verdict for the defendant Wilkerson (as indicated no process was served on the driver, Smithers) upon which a judgment dismissing the suit as to Wilkerson was entered. Plaintiff has not appealed from that action.

We quote the succinct and clear statement by counsel for the administrator of the questions presented for our determination:

'(1) Whether or not there is any evidence to support a verdict of the jury in favor of the Plaintiff, or whether the evidence shows Plaintiff guilty of such contributory negligence as bars her recovery.

'(2) Whether or not the verdict was excessive.

'(3) The application of Section 9780 of the Tennessee Code, commonly known as the Dead Man's Statute, to the testimony of a Plaintiff in a joint action against an Administrator of a deceased person and two individual Defendants for personal injuries growing out of an automobile accident.

'(4) The application of Section 9780 of the Tennessee Code to the testimony of a Defendant sued jointly with an Administrator of a deceased person and another individual, where the Defendant testifying could not be served with process by reason of absence from the state.

'(5) Whether or not the Court erred in refusing to permit the Defendant, Administrator, to cross-examine the Plaintiff about the facts and circumstances surrounding an accident in which the Administrator's intestate was killed, when the Court had ruled that such testimony was admissible only as against an individual Defendant.

'(6) Whether or not the Court erred in refusing certain requests for special charges submitted by the Defendant.

'(7) Whether or not the Court erroneously charged the jury with respect to the liability of the Defendant.'

There is abundant testimony, other than that of plaintiff, that the deceased, Mr. Carman, proceeded into the intersection without stopping and, apparently, without looking to the right for traffic coming from that direction. At least two witnesses so testified and there is no proof to the contrary. There is some dispute as to whether or not a stop sign had been erected but that is a disputed issue and clearly a jury finding, implicit in the verdict, that a stop sign had been erected is supported by material evidence.

When plaintiff was about to testify as to what occurred immediately before, and at the time of, the collision the court, upon objection of counsel for the administrator, excluded her testimony as being incompetent against the administrator under Code Section 9780. The jury was accordingly instructed that her testimony as to such matters could be considered only in determining the liability of defendant Wikerson and not against the administrator. It was ruled, at the same time, that if counsel for the administrator should cross examine the witness, as to such matters, the administrator would be 'calling' her as his witness and the statute would not apply.

Despite this ruling, counsel for the administrator cross examined plaintiff, in pertinent part, as follows:

'Q. Now Mrs. Huff, from the time you left, when you entered into the intersection, when you started into the intersection there at highway 11, and Chilhowee Drive, did you ever look to your right up that hill to see whether there was anything coming? A. No, I didn't. I looked when the truck was right at us. That is the only time I turned my head.

'Q. Do you know whether there was a stop sign on the corner? A. No, because I wasn't familiar with the road, and when I am not driving I don't look for stop signs, I depend on the driver.

'Q. You weren't concerned yourself with what was going on at all? A. No.'

On cross examination by counsel for Wilkerson, Mrs. Huff testified that, because of a large sign near the intersection, (also a tree) she could not see more than 100 feet on Highway 11-W east of the inersection and that she was looking straight ahead thinking Mr. Carman intended to continue across the highway and that before reaching the intersection she had cautioned Mr. Carman about getting so enthusiastic in his conversation that he allowed the car to get on the wrong side of the highway.

This testimony is undisputed and it is unnecessary to decide whether the administrator, by cross examining Mrs. Huff, made her his witness. He had a right to call her as his witness subject only to the penalty of being bound by her testimony. The testimony elicited from her in the course of the administrator's cross examination is all favorable to him and the penalty amounts to nothing. It was testimony to be considered by the jury. We have concluded, however, that taken at full value, it was not such as to warrant a directed verdict on the ground of proximate contributory negligence.

Renfro v. Keen, 19 Tenn.App. 345, 89 S.W.2d 170, 172, contains a clear and exhaustive review and digest of prior Tennessee cases dealing with the submission to the jury of the issue of contributory negligence in guest cases. In the course of the opinion, written by Judge DeWitt, it was said: 'Issues as to contributory negligence of guests who gave no warning or remonstrance were held to be for the jury and verdicts excusing such guests for such failures were sustained where the emergencies same suddenly and the view was obstructed [Stem v. Nashville Interurban Ry., 142 Tenn. 494, 221 S.W. 192; Johnson, Adm'r. & Faucette v. Maury County Trust Co., 15 Tenn.App. 326; Tenn. Central Ry. Co. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225; Knoxville Railway & Light Co. v. Vangilder, 132 Tenn. 487, 178 S.W. 1117, L.R.A.1916A, 1111; Nashville, C. & St. L. Raileay v. White, 158 Tenn. 407, 15 S.W.2d 1; Louisville & N. R. Co. v. Tracey, 12 Tenn.App. 167]; where there was a sudden collision not immediately to be anticipated [Claxton v. Claxton, 16 Tenn.App. 399, 64 S.W.2d 854; Woodfin v. Insel, 13 Tenn.App. 493] * * *.'

Subsequent cases included Gulf, M. & O. R. Co. v. Underwood, 182 Tenn. 467, 187 S.W.2d 777; Edenton v. McKelvey, 186 Tenn. 655, 212 S.W.2d 616; Roddy Mfg. Co. et al. v. Dixon et al., 21 Tenn.App. 81, 105 S.W.2d 513; Chickasaw Wood Products Co. v. Lane, 22 Tenn.App. 596, 125 S.W.2d 164; Shook v. Simmons, 23 Tenn.App. 685, 137 S.W.2d 332.

Gulf, M. & O R. Co. v. Underwood involved analogous circumstances. Mrs. Underwood, the plaintiff, was injured at a railroad crossing while riding as a guest of one Mrs. Inman. The accident occurred at night. Mrs. Underwood admitted that she knew there was a railroad crossing on the street but denied that she knew exactly where it was. In the course of the opinion, written by Mr. Justice Gailor, the Court significantly said: '* * * if we are to say that Mrs. Underwood was guilty of proximate contributory negligence as a matter of law and so prevent a submission of her case on the facts to the determination of a jury, she must, at the time of her injury or...

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