Davis v. Sparkman

• Citation: 55 Tenn.App. 65,396 S.W.2d 91
• Parties: Roy L. DAVIS, and Dixie Portland Flour Mills, v. D. C. SPARKMAN. 55 Tenn.App. 65, 396 S.W.2d 91
• Decision Date: 05 August 1964
• Court: Court of Appeals of Tennessee

Page 91

396 S.W.2d 91

Roy L. DAVIS, and Dixie Portland Flour Mills, v. D. C. SPARKMAN.

55 Tenn.App. 65, 396 S.W.2d 91

Court of Appeals of Tennessee, Eastern Section.

Aug. 5, 1964.

Certiorari Denied by Supreme Court Oct. 19, 1964.

[55 TENNAPP 66] Strang, Fletcher, Carriger & Walker, Chattanooga, for plaintiffs in error.

Timberlake, Brown, Curtis & Summar, Chattanooga, for defendant in error.

COOPER, Judge.

Referring to the parties as they appeared below, plaintiff, D. C. Sparkman, brought this suit to recover for personal injuries and property damage sustained[55 TENNAPP 67] when his automobile was truck by a tractor-trailer driven by the defendant, Roy L. Davis, in the course and scope of his employment by the defendant Dixie Portland Flour Mills. At the conclusion of all proof, the trial court sustained plaintiff's motion for a directed verdict on the issue of liability, and submitted the cause to the jury on the issue of damages only. The jury returned a verdict for plaintiff for $9,000.00 for personal injuries, and a verdict for $1,000.00 for property damage.

The defendants perfected their appeal contending (1) that the trial court erred in directing a verdict for the plaintiff, and (2) that the verdict of the jury was excessive.

In passing upon the propriety of the trial court's action in directing a verdict for the plaintiff, we must remember that the issue of liability should not be taken from the jury if reasonable men, acting as triers of the facts, could differ as to the conclusions or inferences to be drawn from the evidence introduced in this cause. Shuler v. Clabough, 38 Tenn.App. 333, 274 S.W.2d 17; Supreme Liberty Life Insurance Company v. Pemelton, 24 Tenn.App. 576, 148 S.W.2d 1.

Looking at the evidence in the light most favorable to the defendant as we are required to do, we find that the accident occurred at daybreak. Visibility was good even though it was raining. Dayton Boulevard, being paved with macadam, was slippery.

Prior to the accident, defendant had followed plaintiff for several blocks without incident, maintaining a distance between the vehicles of approximately 150 feet or more. Both vehicles were traveling at a speed of between 25-30 miles per hour.

[55 TENNAPP 68] As the plaintiff neared the intersection of Dayton Boulevard with Martin Road, the traffic signal turned from green to amber, and plaintiff brought his automomile to a gradual stop. The defendant, observing the changing light and plaintiff's stop, applied the brakes on his trailer. The trailer skidded sideways on the wet pavement. The defendant 'straightened up' the trailer and again applied his brakes. The trailer again skidded sideways. Defendant, being too close to plaintiff to again attempt to straighten the trailer, applied the brakes on both the tractor and trailer. The trailer jackknifed and skidded 40 to 50 feet, striking plaintiff's automobile and knocking down a light post.

The record further shows that the proper procedure to prevent a trailer from jackknifing it to apply the trailer brakes first, and then apply the foot brakes which control both trailer and tractor brakes. The defendant followed this procedure.

The trailer was empty, but there is no indication in the evidence that the lack of a load had anything to do with the trailer skidding or jackknifing.

It is well-settled that a driver must keep his automobile under reasonable control when driving on wet and slippery streets, and if he operates it so that it is out of his control he is guilty of negligence and is liable for all injuries and damage proximately resulting therefrom. Stanford v. Holloway, 25 Tenn.App. 379, 157 S.W.2d 864; National Cash Register Co. v. Leach, 3 Tenn.App. 411.

It is equally well-settled that if, prior to losing control, the driver operates his vehicle in a manner commensurate with the traffic and road conditions existing [55 TENNAPP 69] and loses control due to the condition of the road, he is not guilty of negligence. See 58 A.L.R. 278; 113 A.L.R. 1022; 5A Am.Jur., Automobiles and Highway Traffic, Secs. 341 and 342.

As stated in Shepherd v. Ball, 47 Tenn.App. 189, 337 S.W.2d 243, 244.

'In the absence of antecedent negligence or negligence in the operation of the car after it has skidded, liability of the * * * driver * * * can not be predicated solely on skidding on a wet or slippery road.'

The problem, then, in the present case is to determine if reasonable men, acting as triers of the facts, could differ as to the cause of the defendant losing control of his vehicle. We think they could. Reasonable control is frequently measured by the ability of the operator to stop his vehicle quickly and easily. When this request is not accomplished, we think an inference is warranted that the vehicle was traveling too fact or that adequate control was not maintained. Then, too, we think a jury...