Anderson v. Carter

• Citation: 118 S.W.2d 891,22 Tenn.App. 118
• Parties: ANDERSON v. CARTER.
• Decision Date: 29 October 1937
• Court: Court of Appeals of Tennessee

118 S.W.2d 891

22 Tenn.App. 118

ANDERSON v. CARTER.

Court of Appeals of Tennessee, Western Section.

October 29, 1937

Certiorari Denied by the Supreme Court February 2, 1938.

Appeal in Error from Circuit Court, Shelby County; H. W. Laughlin Judge.

Action by James Carter against H. H. Anderson for injuries sustained in automobile collision. Judgment for plaintiff, and defendant appeals in error.

Affirmed.

Frazer & Clifton, of Memphis, for plaintiff in error.

Harry Barnett and Louis Peiser, both of Memphis, for defendant in error.

SENTER Judge.

The parties will be referred to as in the Court below, James Carter, Plaintiff, and H. H. Anderson, Defendant.

This suit grows out of an automobile collision occurring at the intersection of West Iowa and Arkansas Streets in the city of Memphis on September 20, 1935, resulting in serious personal injuries sustained by plaintiff. In addition to common law negligence on the part of the defendant, plaintiff also plead the violation of certain city ordinances then in force in the city of Memphis. The defendant filed a plea of the general issue of not guilty and also a plea of contributory negligence, and in addition thereto especially plead the violation by plaintiff of certain city ordinances then in force in the city of Memphis. The case was tried to a jury resulting in a jury verdict in favor of plaintiff and against the defendant for the sum of $1,000. A motion for a new trial by the defendant was overruled. From the action of the Court in overruling his motion for a new trial and in rendering judgment on the jury verdict, the defendant has appealed in error to this Court. At the conclusion of all the evidence the defendant moved the Court for a directed verdict in his favor. This motion was overruled and to the action of the Court in overruling his motion for a directed verdict the defendant excepted.

By the five assignments of error it is contended, first, that there was no evidence to support the verdict of the jury; second there is no material evidence to support the verdict of the jury; third, the verdict of the jury and the judgment thereon are against the weight and preponderance of the evidence fourth, the Court erred in refusing to grant defendant's motion made at the conclusion of plaintiff's proof, that the Court direct a verdict for the defendant; fifth, the Court erred in refusing to sustain defendant's motion for a directed verdict in his favor, made at the conclusion of all the proof.

It will thus be seen that under the assignments of error only two questions are presented. First, that there was no material evidence showing proximate negligence upon the part of the defendant. Second, that the collision was the result of the negligence, or contributory negligence, on the part of plaintiff which would go in bar of any recovery. This involves a consideration of facts as disclosed by the record with reference to the collision. There is material evidence that at the time of the collision the defendant was driving west on Iowa Street at a rate of speed of about 40 miles per hour and was driving at that rate of speed at the time of the collision. The city ordinances of the city of Memphis provide that Iowa Street is a preferred street and that traffic travelling on the intersecting street, Arkansas, shall come to a full stop before entering the street intersection, and shall not proceed to drive onto Iowa Street until it is reasonably safe to proceed. The ordinances of the city of Memphis also provide that the speed limit on Iowa shall not be in excess of 25 miles per hour. These ordinances were especially plead by the respective parties, and were properly proved. There is very little conflict in the evidence as to the actual happening of the collision and the injuries resulting to plaintiff there from, except the defendant denied that he was driving in excess of the speed limit as provided by the ordinance. It also appears that the plaintiff was driving north on Arkansas Street, that as he approached the street intersection where Arkansas crossed Iowa he was driving at a moderate rate of speed. He did not bring his automobile to a full stop before entering the street intersection. He reduced his speed to about 5 miles per hour and then proceeded to enter Iowa when the rear end of his automobile was struck by the automobile driven by the defendant, and plaintiff's car was knocked 20 or 25 feet west by the force of the collision and plaintiff was thrown out of his car sustaining the personal injuries complained of. Plaintiff had almost completed the crossing and was near the north side of the street intersection at the time the car driven by him was struck by the car driven by defendant.

For appellant it is contended that plaintiff was guilty of negligence per se in violating the city ordinance then in force in Memphis, by entering the street intersection without bringing his car to a full stop as provided by the ordinance, and entering the street intersection without first ascertaining that it was safe to cross Iowa, the preferred street, and that his contributory negligence in violating the city ordinance was one of the proximate, direct, and efficient causes of the collision and that this is true as a matter of law. In support of this contention appellant cites and relies upon several cases. Bejach v. Colby, 141 Tenn. 686, 214 S.W. 869; Mese v. Summers, La.App., 170 So. 510; Blinder v. Monaghan, 171 Md. 77, 188 A. 31; St. Mary's Academy v. Newhagen, 77 Colo. 471, 238 P. 21, and other cases.

These cases and numerous others support the rule that a person cannot rush heedlessly into an obvious danger from which an injury results to him and recover for the injury. The rule on this subject is well stated in the case of Bejach v. Colby, Supra, wherein the Court states (page 870):

"It is well settled by our decisions that

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