Chandler v. Nolen

• Decision Date: 17 January 1961
• Citation: 359 S.W.2d 591,50 Tenn.App. 49
• Parties: Eugene CHANDLER and Wife, Plaintiffs-in-Error, v. Spirgon G. NOLEN, Defendant-in-Error. 50 Tenn.App. 49, 359 S.W.2d 591
• Court: Tennessee Court of Appeals

Page 591

359 S.W.2d 591

Eugene CHANDLER and Wife, Plaintiffs-in-Error, v. Spirgon G. NOLEN, Defendant-in-Error.

50 Tenn.App. 49, 359 S.W.2d 591

Court of Appeals of Tennessee, Western Section.

Jan. 17, 1961 Certiorari Denied by Supreme Court April 5, 1961.

[50 TENNAPP 50] John L. Williams, Huntingdon, Murchison & Murchison, Jackson, for plaintiffs in error.

W. H. Lassiter, D. D. Maddox, Huntingdon, for defendant in error.

CARNEY, Judge.

The plaintiffs-in-error, Mr. and Mrs. Eugene Chandler, brought suit for damages for the death of their 14-year-old son, Jerry E. Chandler, who was killed when struck by the automobile driven by the defendant, Spirgon G. Nolen. At the close of the plaintiffs' proof the Trial Judge sustained a motion for directed verdict in favor of the defendant. The Trial Judge ruled that the deceased, Jerry E. Chandler, was guilty of proximate contributory negligence as a matter of law because the bicycle on which he was riding was not equipped with lights as required by T. C. A. Section 59-878. Plaintiffs have brought this appeal in error.

Jerry Chandler, along with two other boys on their bicycles, was proceeding eastward on Highway 70 just west of the city limits of Huntingdon, Tennessee, about 5:15 P.M. on December 4, 1959, when the defendant, [50 TENNAPP 51] Spirgon G. Nolen, travelling westward on Highway 70 pulled over the center line into the eastbound traffic lane preparatory to passing a pickup truck also travelling westward immediately in front of him.

The three boys were riding single file on their unlighted bicycles in the south or eastbound lane of traffic. Jerry Chandler, the deceased, was in the middle; his brother, Charles Chandler, aged 12, was more than ten yards in front of Jerry and Tommy Portis, aged 12, was about ten yards behind Jerry.

Just as the defendant, Nolen, came abreast of the pickup truck which he was seeking to pass the left front fender of the Nolen car struck the bicycle upon which Jerry Chandler was riding killing Jerry instantly. Mr. Alonzo Gilley, driver of the pickup truck in front of Mr. Nolen, saw Jerry knocked into the air and pulled his truck over to the right and stopped as did Mr. Nolen.

The highway in the vicinity of the accident is closely settled with residences. The State Highway Department had posted a forty-five mile speed limit as authorized by T.C.A. Section 59-853.

The statute applicable to lights on bicycles is to be found in T.C.A. Section 59-878 which is as follows:

'Lamps and other equipment on bicycles.--(a) Every bicycle when in use at nighttime shall be equipped with a lamp on the front which shall emit a white light visible from a distance of at least five hundred (500) feet to the front and with a red reflector on the rear of a type approved by the department which shall be visible from all distances from fifty (50) feet to three hundred (300) feet to the [50 TENNAPP 52] rear when directly in front of lawful upper beams of head lamps on a motor vehicle. A lamp emitting a red light visible from a distance of five hundred (500) feet to the rear may be used in addition to the red reflector.

'(b) No person shall operate a bicycle unless it is equipped with a bell or other device capable of giving a signal audible for a distance of at least one hundred (100) feet, except that a bicycle shall not be equipped with nor shall any person use upon a bicycle any siren or whistle.

'(c) Every bicycle shall be equipped with a brake which will enable the operator to make the braked wheels skid on dry, level, clean pavement. (Acts 1955, ch. 329, Sec. 77.)'

Under T.C.A. Section 59-852 daytime is designated as running from one-half hour before sunrise to one-half hour after sunset and all other time is considered nighttime.

Plaintiffs' witness who was employed at the airport in Jackson, Tennessee, testified that the sun set in Jackson, Tennessee, on December 4, 1959, the date of the accident, at 4:42 P.M. This witness did not attempt to set the exact time the sun set in Huntingdon, Tennessee. However, this court takes judicial notice of the fact that Huntingdon on a direct line is less than thirty-five miles from and slightly east of Jackson, Tennessee, and we must infer that sunset in Huntingdon on December 4, 1959, at the scene of the accident was not later than 4:42 P.M. Thus it became nighttime under the statute at 5:12 P.M. and the deceased was in violation of the statute in [50 TENNAPP 53] riding his bicycle on the highway at this time without lights. The accident happened about 5:15 P.M.

Some of the plaintiffs' witnesses testified that at the time of the accident it was not quite dark and there was some visibility without lights. The automobiles on the highway all had lights on. From all the plaintiffs' proof we think the Trial Judge correctly held that the accident happened after 5:12 P.M. and correctly held that the deceased, Jerry Chandler, was guilty of negligence per se by violating T.C.A. Section 59-878 by riding his unlighted bicycle on the highway in the nighttime. Also the witness, Tommy Portis, who was riding behind Jerry testified that he saw the defendant's car and pulled off the pavement to the shoulder but Jerry was looking off to his right and did not see the defendant's car in time to pull off to the shoulder of the highway.

All six of the plaintiffs' assignments of error challenge the ruling of the Trial Judge that such negligence by Jerry constituted proximate contributory negligence as a matter of law. Plaintiffs contend that there was ample material evidence from which the jury could reasonably have found that Jerry's negligence was at most remote contributory negligence and that the defendant, Nolen, was guilty of proximate negligence and that such negligence was the sole proximate cause of the decedent's death.

Plaintiffs contend the defendant, Nolen, was guilty of the following acts of negligence:

1. He was driving in violation of the 45 mile speed limit.

2. He attempted to pass the pickup truck driven by Mr. Gilley in violation of T.C.A. Section 59-819 which is as follows:

[50 TENNAPP 54] 'Limitations on overtaking on the left.--No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the righthand side of the roadway before coming within one hundred (100) feet of any vehicle approaching from the opposite direction. (Acts 1955, ch. 329, sec. 18.)'

3. He was guilty of common law negligence in failing to prevent the accident under the last clear chance doctrine.

A state trooper testified that markings on the highway indicated the defendant Nolen's car skidded 120 feet to the point of impact with the bicycle and 30 additional feet beyond the point of impact. All the marks were on the left or south side of the highway. The bicycle was knocked some 90 feet from the point of impact. The defendant told the trooper and other persons that he never did see Jerry or the bicycle and did not know what he had struck until after he had stopped his car. This statement is hard to reconcile with the fact that his car skidded 120 feet before striking the boy on the bicycle. There is no suggestion that the defendant was blinded by the lights on any approaching automobile.

In our opinion there was ample evidence from which the jury might reasonably find the defendant guilty [50 TENNAPP 55] of negligence, common law and statutory, which proximately caused the death of the plaintiffs' son.

So the determinative question on this appeal is whether the Trial Judge correctly held that all reasonable men must come to the conclusion that the negligent conduct of the boy, Jerry Chandler, in riding his bicycle unlighted on the highway in the nighttime caused or directly contributed to his death. Defendant-in-error Nolen in this court as in the court below insists that this case is controlled directly by the holding of this court in Donaho v. Large, 1941, 25 Tenn.App. 433, 158 S.W.2d 447.

In the Donaho case the plaintiff pedestrian was struck from the rear by a truck while plaintiff was walking along the right side of the highway in violation of Code 1938 Section 2687(d). A jury awarded $3,000.00 damages and the defendant driver appealed. The Court of Appeals reversed and dismissed the case on the grounds that the plaintiff was guilty of proximate contributory negligence. From said opinion we quote as follows:

'It becomes pertinent then to inquire as to whether or not plaintiff's negligence was the proximate cause of...