DeRossett v. Malone

• Decision Date: 30 November 1950
• Parties: DE ROSSETT et al. v. MALONE et al.
• Court: Tennessee Court of Appeals

Page 366

239 S.W.2d 366

34 Tenn.App. 451

DE ROSSETT et al. v. MALONE et al.

Court of Appeals of Tennessee, Western Section.

Nov. 30, 1950 Certiorari Denied by Supreme Court March 9, 1951.

Emmett W. Braden, Walter P. Armstrong Jr. and Albert F. Johns, all of Memphis, for plaintiffs in error.

John R. Gilliland, Charles G. Black, Memphis, for defendants in error.

ANDERSON, Presiding Judge.

The original plaintiff, Mrs. Malone, brought this action against the defendants, Robert A. DeRossett, Jr., and Robert A. DeRossett, to recover damages for personal injuries sustained by her when, while attempting to cross a street in Memphis at a point between intersections, she was struck by an automobile driven by the defendant, Robert A. DeRossett, Jr., and owned by the defendant, Robert A. DeRossett. In a separate count her husband sought to recover for medical expenses incurred in the treatment of his wife and loss of her services. The case was submitted to the jury, who returned a verdict in favor of both plaintiffs, awarding Mrs. Malone $6,000.00 as damages, and Mr. Malone, $1,200.00 The judge overruled a motion for a new trial filed on behalf of Mrs. Malone, and entered a judgment in her favor for the amount of the verdict. In the case of Mr. Malone, he suggested a remittitur of $600.00 which being accepted, judgment was entered in his favor in the amount of $600.00. The verdict of the jury was in all other respects approved by the judge.

The sole contention is that the plaintiff, Mrs. Malone, was guilty of proximate contributory negligence as a matter of law, and therefore the defendant's motion for a directed verdict should have been sustained. The judge's approval of the verdict upon the issue of liability requires that this contention be disposed of upon a consideration of the evidence in the light most favorable to the verdict.

The declaration alleged that on August 23, 1948, about 10 o'clock p. m., the plaintiff, Mrs. Malone, while attempting to cross from the south to the north side of Lamar Boulevard, a short distance west of its intersection with Bellevue Street, was struck by the automobile driven by the defendant, Robert A. DeRossett, Jr., and owned by the defendant, Robert A. DeRossett, which vehicle was proceeding westwardly on Lamar Boulevard. The first count charged common law negligence on the part of the driver of the vehicle in that he was driving at a dangerous and reckless rate of speed; was not keeping a proper lookout ahead; and did not use all reasonable means to avoid a collision when he saw or by the exercise of reasonable care should have seen that a collision was imminent.

The second count charged that the car was being operated in violation of Section 816 of the City Ordinance prohibiting reckless driving, and of Section 817 prohibiting any vehicle from driving at a greater rate of speed than 30 miles per hour.

The defendant filed pleas of the general issue and contributory negligence, and in addition averred that the plaintiff, Mrs. Malone, was guilty of violating Section 2687(c) of the Code of Tennessee and sub-sections A and B of Section 871 of the Traffic Code of the City of Memphis.

Code Section 2687(c) provides as follows: 'Every pedestrian crossing a road, street or highway within a business or residential district at any point other than a pedestrian crossing, crosswalk, or intersection, shall yield the right of way to vehicles upon such road, street or highway.'

Sub-sections A and B of Section 871 of the City Traffic Code provides as follows:

'Sec. 871--Crossing at Other Than Crosswalks--(a) Every pedestrian crossing a roadway at a point other than within a marked crosswalk, or within an unmarked crosswalk at an intersection, shall yield the right-of-way to all vehicles upon the roadway.

'(b) Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk.'

Plaintiffs filed a replication denying that Mrs. Malone was guilty of contributory negligence, and relying upon subsection C of Section 871 of the Traffic Code, which provides as follows: '(c) Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall exercise proper precaution upon observing any child or confused or incapacitated person upon a roadway.'

It seems to have been conceded below and here that the above quoted subsection B of Section 871 is not applicable because there was no evidence to show that traffic control signals were in operation at both the intersections between which the accident occurred. But Code Section 2687(c) and sub-section A of Section 871 of the Traffic Code are applicable.

Bellevue Street runs north and south and intersects Lamar Boulevard, which runs in a general east and west direction but more precisely in a southeasterly and northwesterly direction. The intersection of Bellevue and Lamar is irregular in that another street, Minna Place, running east and west, lies south of Lamar and enters into Bellevue from the west, but does not cross, thus making a five-way intersection. Traffic at the intersection is controlled by an overhead traffic light approximately in the center of the intersection.

Lamar Boulevard is approximately 60 feet wide from curb to curb and accommodates four lanes of traffic. However, it is marked only by a white line in the center. The width of Bellevue is not shown.

There is a small shed for the accommodation of bus passengers situated on the southwest corner of the intersection. On the northwest corner there is a drug store fronting both on Bellevue and Lamar. Immediately west of the west side of the drug store there is an alleyway and immediately west of the alley is a small restaurant known as The Southerner. At the time she was struck, Mrs. Malone was attempting to cross Lamar Boulevard for the purpose of getting a cup of coffee at this restaurant.

Mrs. Malone left her home at 957 Lamar Avenue about 9:45 p. m. and proceeded by city bus to the intersection of Lamar and Bellevue, which she reached about 10 o'clock p. m. She alighted from the bus at the southwest corner of the intersection. After so doing, she crossed Bellevue and Minna Place to the southeast corner of the intersection, where she intended to board another bus to go north on Bellevue. After standing there for a few minutes, she re-crossed to the southwest corner, having decided there was sufficient time before catching the other bus to procure a cup of coffee at The Southerner Cafe, located as aforesaid on the north side of Lamar, 120 feet west of the west line of the intersection.

When Mrs. Malone returned to the southwest corner of the intersection, she observed that the traffic control signal over the intersection of Lamar and Bellevue was green for the east and westbound traffic on Lamar. She realized that in order to get a cup of coffee at the cafe across the street and also catch the next northbound bus on Bellevue, she would have to hurry, and in order to save time, instead of waiting for the traffic light to thange and using the walkway provided for pedestrians at the intersection, she proceeded west, along the south side of Lamar until the traffic light turned from green to red for east and westbound traffic on that thoroughfare. That occurred when she reached a point a few feet west of the carshed on the south side of Lamar west of Bellevue. At this point, she stepped off of the south curb of Lamar into the street and started to walk across that thoroughfare at a northwesterly angle toward the Cafe. She proceeded without stopping until she was struck by the left side of the front of the automobile. The collision occurred when she had arrived at a point four to six feet north of the center line of Lamar.

The record leaves it uncertain as to how far west of the intersection Mrs. Malone was when she was struck. The only evidence directly upon the point was the testimony of one of the defendant's witnesses who was a passenger in the defendant's car. He estimated the distance to be 150 feet west of the intersection. Whether he meant the west line of the intersection or the center of it, he did not say. The defendant introduced a civil engineer who, having made several measurements at the scene, made a plat which was intoduced in evidence. It shows the distance between the number of points and the engineer testified with respect to others. But the distance from the intersection to the point where the plaintiff was struck by the car does not appear either from the plat or his evidence. He did testify, however, that by actual measurement it was exactly 120 feet from the west line of the intersection to the Southerner Cafe on the north side of Lamar.

It appears to be conceded that when she was struck, Mrs. Malone was proceeding at a northwesterly angle from a point a few feet west of the carshed on the south side of Lamar to the Southerner Cafe on the north side. Thus it appeared reasonably certain that the collision occurred somewhat east of the Southerner Cafe, but just how far was not shown. Therefore the estimate of the defendant's witness that it was 150 feet from the intersection to the point of the collision is unreliable unless his testimony referred either to the center of the intersection or the east side of it.

At the time of the accident, McClure, a witness for the plaintiff, was seated in an automobile headed west and parked in front of the Southerner Cafe. He did not see the car strike Mrs. Malone but he heard the noise incident thereto and immediately looked in that direction. He saw Mrs. Malone lying in the street three or four feet north of the center and saw the automobile proceeding west at a rate of speed which he estimated at '30 miles an hour or better.'

The defendant testified that when Mrs. Malone loomed up in front of his car an instant before the...