Chandler v. Davidson County

• Decision Date: 11 February 1920
• Citation: 218 S.W. 222,142 Tenn. 265
• Parties: CHANDLER v. DAVIDSON COUNTY ET AL.
• Court: Tennessee Supreme Court

218 S.W. 222

142 Tenn. 265

CHANDLER v. DAVIDSON COUNTY ET AL.

Supreme Court of Tennessee.

February 11, 1920

Certiorari to Court of Civil Appeals.

Action by Ada Chandler against Davidson County and others to recover for personal injuries. Judgment for plaintiff against the defendant named alone was reversed in the Court of Civil Appeals on appeal by both parties, and plaintiff brings certiorari. Reversed and rendered.

J. D B. De Bow and T. J. McMorrough, both of Nashville, Jno. W Hilldrop, of Madison, and Horace Osment, of Nashville, for defendants.

LANSDEN C.J.

This is an action for personal injuries brought by the plaintiff against Davidson county, the board of workhouse commissioners, and others, to recover damages for personal injuries upon the following facts, as stated by the Court of Civil Appeals, and which statement is adopted by her in the brief of her counsel in this court:

"This is an action for the recovery of damages for personal injuries alleged to have been sustained by plaintiff as a result of falling into a hole or ditch by the side of a public road or turnpike in Davidson county, at or near where it is intersected by a roadway leading through a gateway across the lawn into the country home of W. S. Noble, a member of the Nashville bar, upon the theory and averment that the hole as located was a public nuisance created by the defendants and allowed by them to become and remain a constant and standing menace and nuisance.

The action is against Davidson county and W. C. Hirsig, H. B. Chadwell, W. M. Pollard, S. F. Newsom, and J. R. Allen, as members of the county workhouse board, and George Hobson, superintendent of the county workhouse, they being sued in their individual, as well as official character, and the damages sued for are laid at $25,000.

The court below, upon the conclusion of the evidence, and upon motion by them to that end, instructed the jury to return a verdict in favor of the defendants Pollard, Hirsig, Allen, Chadwell, and Newsom, which was accordingly done, and the suit dismissed as to them, both in their capacities as workhouse commissioners, and as well individually.

The jury returned a verdict in favor of George Hobson, and the suit was dismissed by the court as to him. The jury found the issues in favor of the plaintiff and against the defendant Davidson county and assessed damages in her favor and against the county in the sum of $10,000, whereupon judgment was so pronounced and for costs, and from the result thus reached and judgment so pronounced this appeal is being prosecuted, and errors have been assigned by Davidson county for the alleged error in pronouncing judgment against it according to the verdict of the jury, and by Ada Chandler, the plaintiff, who filed the record for error, because of the court's action in dismissing the case or awarding peremptory instructions of dismissal as to the defendants workhouse commissioners, Pollard, Hersig, Chadwell, Allen, and Newsom.

It is altogether clear, we think, under the record, that the roadway in question was being constructed or repaired at the point where the accident to plaintiff occurred, resulting in her injury, under the authority of Davidson county, plaintiff in error, through and under the control or supervision of the board of road commissioners, W. M. Pollard, W. G. Hirsig, H. B. Chadwell, J. R. Allen, and S. F. Newsom, and the superintendent of the county workhouse, George Hobson, who had charge of the county convicts therein.

It seems equally clear that during the progress of this work of repair, or the construction of the roadway in question, a ditch or excavation was made by those doing and in active charge of the work, some 9 feet in length, 4 feet wide, and 3 1/2 feet deep. This hole or excavation was in or near the front entrance to the home of W. S. Noble, near the city of Nashville. It was at the edge of the macadam covered part of the roadway, and possibly may have extended a very limited distance into the edge of the macadam surface. The ditch was cut out of rock largely and was rough and jagged to a degree on its sides and bottom. In this condition the hole or excavation was left unguarded for some time. The plaintiff on the night of the injury was coming from the city of Nashville with three other young ladies, and after alighting from the street car, a short distance away, was passing up the roadway going to the home of W. S. Noble, where the plaintiff was a visitor. When thus approaching the gateway entrance to the grounds of the Noble home, in the darkness, an automobile approached from the rear at a very rapid rate of speed, and, in their effort to reach the entrance or gateway and avoid a collision with the machine, the plaintiff fell into the hole.

The injuries suffered by the plaintiff as the result of the fall were quite serious. She had never regained her strength, was in a very depleted physical condition, and has been unable to discharge the ordinary duties of life devolving upon her, and at the same time she was examined she was a great sufferer. The entire scope of her difficulties are attributable, according to the record, to the injuries sustained from this fall. It is shown that the plaintiff was not familiar with conditions as they existed at this time, growing out of the improvement of the pike, including the excavation that has been made upon the said roadway and into which she fell and was injured. The night was dark and she could not see the hole or excavation. She with her companions were being pressed upon by the approaching automobile; the horn was being blown and the alarm sounded, and this greatly excited and frightened the ladies, including the plaintiff. No serious question seems to be made but that the injuries which the plaintiff suffered were serious and perhaps permanent."

The Court of Civil Appeals took the view that Davidson county was not liable for the injuries sustained by plaintiff, and reversed the circuit court and dismissed the suit as to it. A petition for writs of certiorari was filed...