Davidson County v. Blackwell

• Decision Date: 16 November 1934
• Citation: 82 S.W.2d 872
• Parties: DAVIDSON COUNTY v. BLACKWELL.
• Court: Tennessee Supreme Court

Page 872

82 S.W.2d 872

DAVIDSON COUNTY v. BLACKWELL.

Court of Appeals of Tennessee, Middle Section.

November 16, 1934.

Certiorari Denied by Supreme Court June 10, 1935.

Appeal in Error from Circuit Court, Davidson County; A. G. Rutherford, Judge.

Action by H. L. Blackwell, administrator, against Davidson County, Tenn. Judgment and verdict for plaintiff, and defendant appeals in error.

Judgment reversed, verdict set aside, and action dismissed.

Lurton Goodpasture, of Nashville, for Blackwell.

Horace Osment, of Nashville, for Davidson County.

DE WITT, Judge.

This action was brought by H. L. Blackwell, administrator of the estate of Ferdie Blackwell, against Davidson county for damages for the death of Ferdie Blackwell on December 17, 1931, while engaged in the performance of his duties as an employee of the Davidson county highway department. The deceased was riding upon a steam shovel, which was being transported upon a trailer drawn by two trucks from a place where the steam shovel had been used in highway construction by the highway department, toward a place on the Buena Vista Highway in Davidson county, where it was to be likewise used. When a bridge over a creek on highway No. 12 was reached, the bridge broke down under the weight of the steam shovel and trailer, throwing them down into the creek and killing Ferdie Blackwell.

Upon a trial to a jury, a verdict for the administrator for $7,500 was rendered against the county, and judgment was entered thereon. The county of Davidson has appealed in error to this court.

The declaration is in three counts. In the first count it was averred that the transportation of the steam shovel and trailer constituted a public nuisance endangering the life of the deceased, as well as the lives of other persons; that it endangered the property of the state of Tennessee by its unlawful use and negligent operation; that the defendant was negligent in transporting the machinery at a rate of speed in excess of nine miles per hour, and in failing to observe the ordinary precaution of inspecting the bridge before it would be crossed.

In the second count, after adopting the averments made in the first count, it was averred that highway No. 12 was a state highway within the meaning of section 1 of chapter 130 of the Public Acts of 1925, which provides, in effect, that such vehicles using the public thoroughfares shall have a maximum weight of ten tons, and making a violation of the same a misdemeanor; and that the combined weight of the trailer and the steam shovel or excavating machine was approximately 25 tons. (Under this count it is insisted that the provision of said act (section 6) which excluded Davidson county from the operation of the act was unconstitutional.)

In the third count (which was added by way of amendment), after adopting the averments contained in the first and second counts, it was charged that the bridge itself was defective; that this condition was known to the county through its agents and officials, and was unknown to the deceased; that said bridge constituted a public nuisance; and that the county through its agents and officials had failed in the performance of an alleged duty to warn the deceased of the danger incident to crossing said bridge with said heavy machinery, and that as a result thereof he was led into a dangerous death trap to the loss of his life.

Before the third count was added, Davidson county interposed a demurrer; and it was overruled. The grounds of the demurrer were that the county was not liable for acts of nonfeasance of its officers, agents, or employees in the performance of their duties as representatives of the county engaged in the performance of a governmental function; that the declaration showed that the plaintiff's intestate assumed the risk and was guilty of contributory negligence barring a recovery; and that the county was not responsible in damages for the acts of its employees in creating a dangerous condition or status in one of its roads.

The demurrer was properly overruled because it did not adequately reach the question whether or not the county had created a nuisance. This question is, however, presented under the assignment that the trial judge erred in refusing, at the close of the evidence, to direct a verdict for the defendant. We will say here that the charge made in the third count, that the bridge was defective, presented no cause of action against the county; and after the motion for a directed verdict was overruled, and the court had charged the jury, the court should have given in instruction to the jury the defendant's special request No. 4, in which this proposition was directly and correctly stated. It is well settled in this state that in the establishment and maintenance of roads and bridges a county exercises the functions of sovereignty; and that it is not liable in damages for injuries or death caused by a vehicle breaking through an unsafe bridge on its highway. Binkley v. Hughes (Tenn. Sup.) 73 S.W. (2d) 1111; Carothers v. Shelby County, 148 Tenn. 185, 253 S. W. 708, and cases cited.

The general rule of nonliability of a county for damages while engaged in the exercise of a governmental function is subject to an exception where the county creates a nuisance to the special injury of the citizens; and for such act the county is liable as a private individual in damages. Pierce v. Gibson County, 107 Tenn. 224, 64 S. W. 33, 55 L. R. A. 477, 89 Am. St. Rep. 946; Love v. Nashville Agricultural, etc., Institute, 146 Tenn. 550, 243 S. W. 304, 23 A. L. R. 887; Chandler v. Davidson County, 142 Tenn. 265, 218 S. W. 222, 224. The creation of a nuisance is not an attribute of sovereignty.

It is shown without dispute that the steam shovel was being transported to another place for use in construction or repair of a highway belonging to the county. After instructing the jury that the county is not liable for the negligent acts of its servants and officers when engaged in constructing or repairing roads, because this involves a discretion whether or not the said roads should be constructed or repaired, the trial judge told the jury that if they should find that the deceased came to his death while the county was engaged in the business of constructing or repairing a public highway calling for such discretion and judgment, or if at the time of the fatal accident the county was engaged in an act so closely connected with its legislative duty that they could not say whether the county was acting in a governmental capacity or not, then the defendant, Davidson county, would not be liable in this case. Thus far these instructions were proper. However, the trial judge followed these instructions with the following:

"But if you shall find that the defendant Davidson County at the time of the accident was not acting in a governmental capacity, that is to say, if you shall find that it was not completing or repairing any road, or engaged in an act so intimately connected therewith as to require governmental discretion and judgment, and that what the County was really doing at the time of the accident was a merely ministerial act, such as returning the excavator to its owner, or taking it to some other place over Highway No. 12 which everybody had a right to travel or to avoid, if they chose to do so, then the defendant Davidson County would be liable for the negligent acts of its servants, if such negligence was the...