Donaho v. Large

• Decision Date: 05 November 1941
• Docket Number: 1.
• Parties: DONAHO v. LARGE.
• Court: Tennessee Court of Appeals

158 S.W.2d 447

25 Tenn.App. 433

DONAHO v. LARGE.

No. 1.

Court of Appeals of Tennessee, Eastern Section.

November 5, 1941

Certiorari Denied by Supreme Court February 7, 1942.

Appeal in Error from Circuit Court, Anderson County; H. B. Brown Judge.

Suit by Lex Donaho against McKinley Large to recover damages for personal injuries received by the plaintiff as result of being struck by a truck driven by the defendant. To review a judgment in favor of the plaintiff, the defendant appeals in error.

Judgment reversed, and suit dismissed.

W. E Badgett, of Knoxville, for plaintiff in error.

Hodges & Doughty, of Knoxville, for defendant in error.

AILOR Judge.

This is a suit by Lex Donaho to recover damages for personal injuries received by him as a result of being struck by a truck driven by plaintiff-in-error. A trial by jury was resulted in a verdict and judgment in favor of the plaintiff for the sum of $3,000. Defendant has prosecuted an appeal in error to this court and has assigned errors herein.

Plaintiff is a farmer and resides in Jefferson County near the town of White Pine. At the time of the accident and injury complained of in this suit defendant was an enrolled in the Civilian Conservation Corps of the United States Government. On the day in question, August 17, 1940, plaintiff had been to the town of White Pine in company with a man by name of Wesley Strange for the purpose of buying groceries. They were returning to their homes by way of the highway connecting White Pine and Dandridge at the time of the accident which happened at about 8:30 P. M., and after darkness.

Defendant was regularly engaged in the discharge of his duties as driver of a truck operated by the Civilian Conservation Corps, and was at the time transporting several other members of the same organization from Bristol, Tennessee, to Norris Tennessee. He was also accompanied at the time by Albert G. Martin, a Lieutenant in the U.S. Marine Corps, who was acting as defendant's superior officer in charge of the truck and defendant and the other enrollees being transported. He is shown to have been an experienced driver and the truck he was driving was shown to have been equipped with a governor limiting its speed to 33 miles per hour.

Plaintiff and his companion started towards their homes on the highway leading from White Pine to Dandridge, walking on the right-hand side of same. They had reached a point about 400 yards from the city limits of White Pine at the time of the accident. It appears that the main highway from Newport to Morristown by way of White Pine was closed at the time to through traffic and that the White Pine Dandridge route was being used as a detour for such traffic. It was heavily travelled at the time by vehicular traffic, and this fact was fully known to plaintiff. The improved portion of the road was variously estimated to be from 16 to 18 feet in width and of oiled macadam surface. Plaintiff and his companion proceeded on their own right-hand side of the highway, Strange walking on the right and plaintiff on the left. As cars proceeding in the same direction approached them they would step off of the improved portion of the highway if horns were sounded as a warning to them. Plaintiff was asked if he realized that there was a truck behind him, and he answered that he did not realize that there was one behind him until it had almost hit him. He says on direct examination that he and his companion were walking on the shoulder of the road at the time and not on the hard surface, and he states positively that no portion of his person was on the hard top of the road at the time. He says that he did not hear any horn sounded or see any lights from the truck before he was hit. However, on cross-examination plaintiff contradicts his first testimony to the effect that he was walking entirely off of the improved portion of the highway, answering: "I was walking with one foot on the hard top and one on the shoulder." In this connection it appears that plaintiff signed a written statement soon after the collision in which he stated that he couldn't judge his position exactly, but that he was just walking on the right-hand edge of the macadam road. He admits that he made no effort to avoid being struck or to get out of the way of the truck approaching from his rear with its lights burning.

Plaintiff says that he did not see the reflection from the lights of the truck. But the substance of his testimony is to the effect that he paid no attention to lights of approaching cars. When asked if he was paying any attention to traffic approaching from behind him, he answered: "Well I would step over when I would hear them blow." He did not step over for the truck for the reason that he did not hear its horn blown. He was then asked: "And you were waiting for the truck to blow before you stepped over? You didn't step over for the lights you waited until you heard it blow?" Answer, "Yes." He says as other cars would pass him, he would step one foot back onto the hard surface portion of the road.

Wesley Strange, plaintiff's companion at the time who was walking by his side to the right, saw the truck as it approached from their rear. When asked how long he had known of its approach he answered, "Well I couldn't say exactly--cars passed us all along." He says that cars had met and passed them, and that cars had overtaken and passed them. He says that another car met them just before the accident going in the direction of White Pine. And he also says that they had met a car only about 50 feet from the point of the collision. But he specifically says that the truck had just passed a car going in the opposite direction at the time of the collision. He knew the truck was approaching, saw its lights and thinks plaintiff saw them. The substance of his testimony is that the lights of the truck were burning and plainly visible to one in the position of plaintiff, and that he could have seen them if he had been looking and using ordinary precaution for his own safety. There was nothing to hinder him from seeing the reflection of the lights.

Some attempt is made to establish the proposition that the accident took place within a residential district as prescribed by the provisions of the Tennessee Code, Sec. 2682, fixing the speed limit at 30 miles per hour. However, we think there is no evidence in the record supporting this proposition. The accident took place about 400 yards from the corporate limits of White Pine. And there is no insistence that there were any markers on the road indicating a speed zone limit. The proof is that it was at least 200 yards from the city limits to the first house on the road, and that they were separated a considerable distance along the highway. Under these circumstances we think it could not be successfully insisted that the accident happened in a limited speed zone. But there is a further reason why the proof fails to sustain any violation of such restriction. The truck in question was equipped with a governor limiting the speed to 33 miles per hour as a maximum speed. Defendant had no control over this governor, and under the circumstances had a right to rely upon its accuracy. Those attempting to fix the speed at which the truck was travelling in excess of this amount admitted that their attempts were pure estimates, and they demonstrated that they were not in position to make an accurate estimate of the speed of the truck.

If the truck were running at the maximum speed permitted by the governor, any violation of the 30 mile per hour limit in residential districts would be more technical than real, and so slight an excess as would be difficult to determine especially...