Central Truckaway System v. Waltner

• Citation: 36 Tenn.App. 202,253 S.W.2d 985
• Parties: CENTRAL TRUCKAWAY SYSTEM, Inc. v. WALTNER (four cases).
• Decision Date: 15 July 1952
• Court: Tennessee Court of Appeals

Page 985

253 S.W.2d 985

36 Tenn.App. 202

CENTRAL TRUCKAWAY SYSTEM, Inc. v. WALTNER (four cases).

Court of Appeals of Tennessee, Eastern Section.

July 15, 1952.

Certiorari Denied by Supreme Court Dec. 5, 1952.

S. F. Dye, Knoxville, Ogle & Ogle, Sevierville, for plaintiff in error.

Fowler, Long & Fowler and Wm. W. Piper, Knoxville, for defendants in error.

HOWARD, Judge.

These consolidated tort actions grew out of an automobile accident which occurred on the Chapman Highway between Knoxville and Sevierville, about 5 miles west of Sevierville, on August 3, 1950, when the automobile owned and driven by the plaintiff, Homer N. Waltner, struck the balustrade of a bridge across the highway. Riding in the car with the plaintiff were his wife, Emma Mae Waltner, age 40, who was killed instantly, and their three minor daughters, Shirley Ann, age 17, who sustained minor injuries, Marilyn, age 15, who sustained a broken hip as well as a brain concussion and cuts about the head and face, and Delores, age 7, who escaped uninjured. Waltner also sustained serious injuries, including a shattered right knee cap, a broken right arm above the elbow, and a brain concussion which greatly impaired his hearing. He further sustained numerous cuts and bruises about his face and other parts of his body, and the radial nerve which controls the muscles in his right hand was injured, limiting its use. At the time of the accident plaintiff and his family, residents of Canton, Ohio, were on a vacation trip to the Smoky Mountains.

Also involved in the accident was a large truck or automobile carrier 44 feet and 4 inches in length, owned by the defendant, Central Truckaway System, Inc., and driven by one of its employees, Henry C. Willis. This carrier was loaded with 4 new automobiles which were to be delivered to the Ford dealer at Sevierville. Both vehicles involved were traveling in an eastwardly direction, toward Sevierville. The accident occurred about 10:30 A.M. on a clear day, and at the time the pavement was dry. However, the grass on the shoulder of the road was still damp from a shower earlier that morning.

It appears that the concrete pavement of the highway over which the parties were traveling was 20 feet wide, and that the shoulder of the highway at or near the bridge where the accident occurred ranged in width from 4 to 8 feet, and was solid and flush with the pavement. The width of the bridge was 24 feet, 2 feet wider on each side than the pavement, and the concrete balustrades were about 3 feet high. The accident occurred on a straight portion of the highway estimated in length at approximately 1000 feet, while Waltner was attempting to pass the defendant's carrier. There was no contact between the two motor vehicles and the accident occurred when the left front of plaintiff's car struck the north balustrade of the bridge, completely demolishing the car. There was a white line in the center of the highway dividing the two lanes of traffic, with yellow lines on curves warning drivers not to attempt to pass other vehicles at such points. The yellow line on the west ended approximately 670 feet from the bridge and started again on the east 165 feet therefrom.

In case No. 1144, Waltner individually sued the defendant to recover damages for his personal injuries and medical and hospital expenses for himself as well as for his two daughters; also for the loss of his daughters' services, and for the damages to his automobile.

In case No. 1145, Waltner, in his own behalf and for the use and benefit of his three minor daughters, sued the defendant for the wrongful death of his wife and for the expenses incidental to her burial.

In cases Nos. 1146, and 1147, Waltner, as next friend of his two minor daughters, Shirley Ann and Marilyn, sued the defendant to recover damages for their injuries and suffering.

Each of the four declarations contains several counts, alleging in substance that the driver of the defendant's truck was negligently and carelessly operating said vehicle prior to and at the time of the accident; that after the plaintiff had sounded his horn and was in the act of passing said vehicle, the driver pulled the tractor part thereof to the left across the white line of the highway onto and into the left lane in front of plaintiff's car, forcing said car into the north balustrade of the bridge, resulting in the injuries and damages complained of; that prior to and at the time of the accident defendant's driver was driving recklessly in violation of Code Section 2681, and did not have said vehicle under proper control; that he drove to the left of the center of the highway without giving any signal of his intention to do so in violation of Code Section 2682, and that the defendant's vehicle prior to and at the time of the accident was being operated at a rate of speed in excess of 40 miles per hour in violation of Code Section 2682.1. All the foregoing Sections refer to Williams Tennessee Code.

To each of the declarations the defendant interposed a plea of not guilty and filed special pleas in which it was admitted (1) that the carrier belonged to the defendant and was on the defendant's business at the time of the accident, and (2) that the driver was an employee of the defendant. At the conclusion of all the evidence the defendant moved for peremptory instructions in all the cases, which motion was overruled, and the trial resulted in the following jury verdicts: $10,000 for Waltner; $12,000 for the death of his wife; $3,500 for Marilyn, and $1200 for Shirley Ann. Motion for a new trial in each of the cases was made and overruled, and this appeal was granted and perfected. No question is made below and none is made here that the verdicts were excessive.

By assignment 1 the defendant contends there was no evidence to support the verdicts, and that the trial court erred in refusing to direct a verdict for the defendant. While this question involves a review of the evidence, such review is only to determine whether there is any substantial evidence to support the verdicts. Under our decisions we are required to 'take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonably inferences to sustain the verdict.' D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897, 901. Applying the foregoing rule to the facts as they appear in the instant case, we think there was ample evidence to support the verdict.

Reviewing the evidence, Waltner and his two daughters, Shirley Ann and Marilyn, testified that they overtook the defendant's carrier several minutes before the accident and followed it several miles without attempting to pass, because of the curves in the highway; that when they drove out of the curve more than 600 feet west of the bridge they saw that the road was straight for a considerable distance, with no approaching traffic, and that Waltner, after sounding his horn, pulled to the left to pass; that when the car got alongside the carrier unit, about the middle, the defendant's driver pulled to the left without giving any warning, crossing over the white center line about 2 feet, forcing Waltner to drive the left side of his car off the pavement and onto the shoulder; that seeing this Waltner again sounded his horn, applied his brakes and slowed down the speed of his car; that after the horn was sounded the defendant's driver pulled back to his side of the road, and Waltner, believing that the driver had heard the horn, proceeded in his efforts to pass; that as the car got alongside the cab of the tractor the defendant's driver again, and without warning, pulled sharply to the left across the center line in front of them; that this action by him blocked the highway and forced their car into the balustrade of the bridge. Waltner stated that when he first saw the bridge he was approximately 500 feet away and that in his efforts to get back onto the pavement, after being forced therefrom, his car slid sideways into the balustrade. He further stated that he was driving at a moderate rate of speed, was looking ahead, and estimated the speed of the defendant's truck at from 40 to 50 miles per hour. The two girls also stated that as they were attempting to pass the defendant's carrier just before being forced off the road, that the carrier got so close to their car they could have reached out the window and touched it.

The plaintiffs introduced two state highway patrolmen who arrived on the scene shortly after the accident, and from their investigation they testified that there were skid marks on the shoulder of the road extending from the bridge west to where the left wheels of the plaintiff's car left the pavement, a distance of approximately 116 feet, and that the grass on the shoulder was damp and slightly slippery because of a rain several hours previously. These patrolmen further stated that the left side of plaintiff's car struck the balustrade just behind the left front wheel, and that it looked like this wheel had knocked off a chunk of the concrete.

The defendant's driver testified that he never saw the plaintiff's car prior to the accident, and denied that he forced it off the highway. He said that he only heard a short 'beep' of plaintiff's horn which was simultaneously with the crash, and that plaintiff's car never did get alongside the cab of the tractor; that he did not know plaintiff was following him until he heard the crash and then he looked in one of the rearview mirrors and saw what had happened; that he had previously pulled off the road and stopped, about two miles back, to permit other cars following him to pass in safety. He also denied that he was driving from 40 to 50 miles per hour, and estimated his speed at 30 to 35 miles.

The defendant introduced several witnesses who visited the scene of the accident. Some of these witnesses stated that plai...