City of Nashville v. Brown
| Decision Date | 10 May 1941 |
| Citation | 157 S.W.2d 612 |
| Parties | CITY OF NASHVILLE v. BROWN. |
| Court | Tennessee Supreme Court |
C. G. Blackard and W. C. Cherry, both of Nashville, for plaintiff in error.
Walker & Hooker, of Nashville, for defendant in error.
Sina Belle Brown was riding as a guest of Logan Gaines on the rear seat of his automobile. As he drove over a "dish gutter" across Shelby Avenue in Nashville, she was thrown violently against the top and front seat of the car, and suffered a concussion of the brain, fractures of three vertebrae and a rupture of the liver.
She brought this suit against the City of Nashville for negligently causing her injuries by creating and maintaining in the street a dangerous condition which "amounted to a trap or a nuisance." The City pleaded the general issue. It also filed some special pleas, which need not be set forth.
She obtained a verdict for $30,000. The trial judge suggested a remittitur of $5,000, which was accepted, and judgment for $25,000 was entered for her against the City. The City appealed in error, and insists that a verdict should have been directed for it, or, at any rate, a new trial should be granted for errors in refusing to give instructions it requested and because the verdict is so excessive as to indicate passion, prejudice and caprice on the part of the jury.
The accident happened December 26, 1931. On March 19, 1932, Sina Belle Brown gave the City notice as required by Code, sec. 8596. On March 22, 1932, she sued the City and Logan Gaines. On July 3, 1933, he paid her $2,500 for a covenant not to sue him. She dismissed the suit as to him, and on May 22, 1935, she also took a nonsuit as to the City. On May 25, 1935, she brought the present suit.
Sparkman Street bridge was one of the bridges across Cumberland River, connecting East Nashville with the rest of the City. Shelby Avenue extended from Sparkman Street bridge east through a section of East Nashville. It was an arterial highway and one of the main arteries of cross-town traffic. It was about forty feet wide and was a smooth, asphalt-paved street. It was paved during the summer and fall of 1922. This work, except at street intersections, was done pursuant to the abutting property law, one-third of the cost being paid by the City and two-thirds by the abutting property owners. The City's governing authority, the Board of Public Works, by an appropriate resolution on May 9, 1922, directed that the work be done according to the abutting property law and according to plans and specifications to be prepared and placed on file in the office of the City Engineer. Such plans and specifications were prepared by the City Engineer, kept on file in his office and the paving except at the intersections was done by a contractor under contract with the City. The work at the intersections was done by the City's own force. After all the work was completed it was accepted and an assessment was made against the abutting properties. This was done by resolution adopted by the Board of Public Works on July 27, 1923.
The dish gutter in question was constructed by the City across Shelby Avenue at its intersection with Fourth Street. Fourth Street, a side street, ran north and south across Shelby Avenue. Fourth Street was paved, somewhat higher in the center than at the curbs. Along its east curb there was an open drain to permit surface water to flow toward the south. The City constructed the dish gutter along the east edge of the intersection of Shelby Avenue and Fourth Street so as to continue the drain across Shelby Avenue and on south along the east curb of Fourth Street. Photographs and maps showing the gutter and the intersection are sent up. The gutter was made of granite blocks, while the rest of the intersection was paved with asphalt. The gutter of granite blocks was 9 feet wide and extended all the way across Shelby Avenue from the north curb to the south curb. The bottom or the "flow line" of the gutter was on a straight line with the east curb of Fourth Street, and was 3 feet east of the west margin of the granite blocks and 6 feet west of their east margin. This flow line was from 2¼ to 3 inches lower than the east and west margins of the granite blocks, but was 9 or 10 inches lower than the surface of Shelby Avenue at points 13 or 14 feet east and west of the bottom of the gutter. Otherwise stated, through this space of 27 or 28 feet (14 feet east and 14 feet west of the gutter) Shelby Avenue made a "dip" of some 9 or 10 inches.
Also this dip was at the crest of a hill. The car in which plaintiff was injured was going east on Shelby Avenue, crossing over this dip. Shelby Avenue going east toward this dip was upgrade, the grade being about 8% This grade started about 300 feet before reaching the dip and continued on to about 13 or 14 feet from it, where the downgrade or dip began. An automobile approaching this dip at night, as Gaines' car was, coming up this grade, would throw its lights above the dip so that one could not see it until he was very close to it. Photographs sent up show that in the daytime one so approaching the dip could not see it until he was within 50 or 60 feet of it; and at night, on account of the lights being deflected up, one could not see it until he was within 25 feet of it, even if he knew it was there and was looking for it.
This condition remained the same from the time the gutter was constructed in 1922 until after the accident in 1931. In 1922, the maximum speed limit of automobiles in Nashville was 20 miles per hour. Some time before 1931 the maximum speed limit on arterial highways was changed to 30 miles per hour. A daily average of between 5,000 and 6,000 automobiles passed over Shelby Avenue.
Expert testimony for the City was that the gutter was built according to approved and sound engineering practice and that it was necessary to take care of the drainage; while the testimony for plaintiff was that it was not built according to proper engineering standards, but was "poor construction" and "dangerous," and that the drainage could have been as well taken care of by a "box culvert" (underground culvert) with the street smoothly paved over it. It was stipulated that this was the only suit that had been brought against the City on account of any accident occurring at the intersection while the dish gutter was there; but plaintiff called some 12 or 13 witnesses who testified that in going over the gutter in an automobile at less than the maximum speed limit they had received severe jolts, lost control of the car, broken out wind-shields, broken springs, and occupants on the rear seat had been thrown against the top of the car and some of them injured. Witnesses for the City admitted that unless one slowed down below the maximum speed in going over the gutter he would get a severe jolt. The present City Engineer, Mr. Beasley, admitted on cross-examination that in driving over the gutter with people on the back seat in his car he had had them complain that "it would throw them up."
As stated, the accident to plaintiff occurred about 6:30 p. m., December 26, 1931. Logan Gaines, in company with two other persons, was taking her from uptown to the home of her sister, 906 Shelby Avenue, where she was living. Miss Waters, a friend of plaintiff and a stenographer of Governor Roberts, was riding on the front seat with Gaines, and a Mr. Bomar, of Louisville, Kentucky, and plaintiff were on the rear seat. Gaines drove across Sparkman Street bridge and east along Shelby Avenue toward its intersection with Fourth Street. It was dark, and his lights were burning. It does not appear that he had ever driven over the dish gutter or knew it was there. He was driving about 25 or 30 miles an hour. Plaintiff knew of the gutter, but was engaged in conversation with Mr. Bomar and did not realize they were approaching it. When the car ran into it, she was thrown against the top of the car and fell forward against the front seat. She was rendered unconscious and remembered nothing until the doctor came to see her that night. The foregoing is her account of the accident. None of the others in the car testified. It seems all of them were unavailable as witnesses at the time of the trial in 1940.
The first issue between counsel is whether upon the facts above stated it could be reasonably found that the City had breached any legal duty to plaintiff.
The general rule is that a city or town holds its streets in a proprietary and not a governmental capacity, and its duty to construct and maintain them is a corporate duty and not a governmental function. Fleming v. Memphis, 126 Tenn. 331, 337, 148 S.W. 1057, 42 L.R.A.,N.S., 493, Ann.Cas.1913D, 1306; Shepherd v. City of Chattanooga, 168 Tenn. 153, 155-157, 76 S.W.2d 322; City of Knoxville v. Gervin, 169 Tenn. 532, 538, 89 S.W.2d 348, 103 A.L.R. 877; Boyd et ux. v. City of Knoxville, 171 Tenn. 401, 405, 104 S.W.2d 419. To construct and maintain its streets in a reasonably safe condition is a corporate duty, and a city or town is answerable for a breach of that duty. Town of Gainesboro v. Gore, 131 Tenn. 35, 37, 173 S.W. 442; Swain v. City of Nashville, 170 Tenn. 99, 101, 92 S.W.2d 405. The measure of that duty is the exercise of ordinary care by the city or town to keep its streets in a reasonably safe condition for travel day and night in the customary modes by persons themselves exercising reasonable care. Swain v. City of Nashville, supra; McQuillin on Municipal Corporations, 2d Ed.,...
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