Borden v. Daniel

• Decision Date: 01 November 1960
• Citation: 48 Tenn.App. 314,346 S.W.2d 283
• Parties: David R. BORDEN, by Next Friend, et al., Plaintiffs in Error, v. Walter DANIEL, Defendant in Error. 48 Tenn.App. 314, 346 S.W.2d 283
• Court: Tennessee Court of Appeals

Page 283

346 S.W.2d 283

David R. BORDEN, by Next Friend, et al., Plaintiffs in Error, v. Walter DANIEL, Defendant in Error.

48 Tenn.App. 314, 346 S.W.2d 283

Court of Appeals of Tennessee, Eastern Section.

Nov. 1, 1960.

Certiorari Denied by Supreme Court March 10, 1961.

[48 TENNAPP 315] Goddard & Gamble, Maryville, for plaintiffs in error.

Cheek, Taylor & Groover, Knoxville, for defendant in error.

McAMIS, Presiding Judge.

The primary question in these cases is whether the defendant Daniel, while on duty as a rural mail carrier, was guilty of negligence, either common law or statutory, in stopping with his car partially on the paved portion of the highway. The trial court directed verdicts for the defendant and plaintiffs have appealed.

Plaintiff David Borden, 4 years of age, was struck and injured in front of his home by a car driven by one Don Rogers as he attempted to cross the highway in front of defendant who had stopped his car for the purpose of selling a stamp. Don R. Borden, as next friend for his son David, sued to recover damages for the personal injuries sustained by the son and, in his own right, for loss of services and medical expenses. Since the suit of Don R. Borden is dependent on the suit of David Borden, by next friend, reference to the suit of the father will be omitted.

[48 TENNAPP 316] The declaration charges that in stopping with his car partially on the paved portion of the highway and leaving less than 18 feet of the pavement unobstructed defendant was guilty of a violation of T.C.A. Sec. 59-859 providing:

'Stopping, standing or parking outside of business or residence districts. (a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle of not less than eighteen (18) feet shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred (200) feet in each direction upon such highway.

'(b) This section shall not apply to the driver of any vehicle which is disabled while on the paved or main-traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.'

T.C.A. Sec. 59-801 was amended by Chapter 34, Acts of 1959, to define a residential district. Apparently counsel have assumed that this definition applies although plaintiff was injured before the Act was amended.

Plaintiff lived with his father and mother on the west side of the highway. Their mail box was 3 or 4 feet off the pavement on the east side. At that point the highway was straight and practically level. At about 11 A.M. [48 TENNAPP 317] plaintiff's aunt who was 13 years of age took him across the highway to the mail box. When defendant approached from the south he saw them standing off the pavement near the mail box. The girl was holding plaintiff by the hand. Defendant stopped with his right wheels off the pavement as far as he could go without striking the post which supported the mail box. This left about 15 feet of pavement unobstructed, with clear visibility from both directions for several hundred feet.

While defendant was engaged in selling a stamp to plaintiff's aunt, the Rogers car approached from his rear. About the same time, plaintiff left his aunt and walked or ran northwardly along the east side of the...