Buckholtz v. Hamilton County

• Decision Date: 16 October 1943
• Parties: BUCKHOLTZ v. HAMILTON COUNTY.
• Court: Tennessee Supreme Court

174 S.W.2d 455

180 Tenn. 263

BUCKHOLTZ v. HAMILTON COUNTY.

Supreme Court of Tennessee.

October 16, 1943

Error to Circuit Court, Hamilton County; Fred Ballard, Judge.

Action by Mrs. Elizabeth Buckholt'z against Hamilton County for injuries sustained when automobile in which plaintiff was riding struck a ditch maintained by county across highway. From a judgment sustaining county's demurrer to plaintiff's petition and dismissing the action, plaintiff appeals in error.

Affirmed.

Foster Johnson and Carlyle S. Littleton, both of Chattanooga, for plaintiff in error.

Thomas S. Myers, of Chattanooga, for Hamilton County.

PREWITT Justice.

The circuit judge sustained the demurrer of Hamilton County to the declaration filed by Mrs. Elizabeth Buckholtz and dismissed her suit. The appeal in error here has resulted. The case grows out of an automobile accident in which plaintiff was seriously and permanently injured.

Plaintiff's declaration charges in substance that she was riding on the back seat of an automobile which was being driven in a careful and prudent manner over one of the hard-surfaced highways which had been built and maintained by the defendant County, and that said County for a purpose foreign to the exercise of any delegated sovereign power, solely by act of commission, created and located on a public highway a dangerous nuisance, proximately resulting in breaking the back of plaintiff.

The ground of negligence is the alleged diversion of a year-round branch immediately above the highway so that it would flow across the road and spill on the land below the highway. The declaration charges as follows: "Defendant excavated constructed, concreted the bottom and sides of, and continuously maintained a narrow ditch approximately from 12 inches to two feet deep, directly across and about the center of a long straightaway between two curves on, the Mountain Creek road, a much traveled, open, hard-surfaced public highway in, and under the supervision, charge and control of said County, into which ditch defendant diverted the clear water from a small, year-round branch immediately above the road, which thereafter flowed through the open ditch across the said road and filled, and thereafter kept the ditch normally filled with clear water approximately to the elevation of the road on either side of the ditch, so that the refraction of the clear water and the location and construction of the ditch, concealed and camouflaged the presence, depth, character and danger of the ditch from approaching motorists, to whom the condition had the appearance of a clear, shallow, safe, temporary wet weather overflow above the highway, and as constructed and located, operated to invite motorists using the highway to continue on their course over the side of the ditch, without slowing down, until it was too late to stop in time to avoid the inevitable accident and injury incident to running through and over said ditch at ordinary speeds; as a proximate result of which, prior to the time complainant was injured, as hereinafter set forth, some fourteen motorists unfamiliar with the location of the ditch and the road at that point, or its danger, had their property or persons injured by driving into said deathtrap, of many of which accidents defendant had knowledge, prior to the date on which plaintiff was injured, as hereinafter set forth."

The declaration further charges that plaintiff below was a guest of Mrs. E. D. Bohr and at the time of the injury sued for was sitting in the rear seat of a car driven by E. D. Bohr, that all the occupants were unfamiliar with the road, and that the said driver drove his car into the ditch breaking plaintiff's back, etc.

The insistence...