Duling v. Burnett

• Decision Date: 24 September 1938
• Citation: 124 S.W.2d 294,22 Tenn.App. 522
• Parties: DULING v. BURNETT. SAME v. BURTON.
• Court: Tennessee Court of Appeals

124 S.W.2d 294

22 Tenn.App. 522

DULING v. BURNETT.

SAME v. BURTON.

Court of Appeals of Tennessee, Middle Section.

September 24, 1938

Certiorari Denied by Supreme CourtFebruary 4, 1939.

Appeal in Error from Circuit Court, Davidson County; R. P. Dews Judge.

Action by Robert Burnett against Albert Duling, Jr., for injuries and action by Jack Burton against Albert Duling, Jr., for property damage, resulting from an automobile collision.The cases were tried together by consent of the parties.From adverse judgments, the defendant appeals in error.

Affirmed.

Manier & Crouch, of Nashville, for plaintiff in error.

White & Howard, of Nashville, for defendants in error.

FAW Presiding Judge.

Two cases, brought and docketed separately, were, by consent tried together in the Circuit Court of Davidson County, and have been brought to this Court in one transcript, with a single bill of exceptions, and docketed and tried together here.

The two cases arose out of a collision between a Chevrolet automobile owned and driven by Albert Duling, Jr., and a "milk truck" owned by Jack Burton and driven by Robert Burnett.

Both actions were brought against Albert Duling, Jr.--one by Robert Burnett for personal injuries suffered by him, and the other by Jack Burton for injuries to his milk truck.

Upon the general issue made by defendant's plea of not guilty to the declaration of each of the plaintiffs, the cases were tried by the Court and a jury, and the jury found the issues in favor of the plaintiffs and assessed the damages of plaintiff Burnett at five thousand dollars, and the damages of plaintiff Burton at two hundred and fifty dollars whereupon the Court rendered a separate judgment accordingly in favor of each plaintiff and against the defendant.

In each case a motion for a new trial was made by the defendant and overruled by the Trial Court, and the defendant prayed an appeal in the nature of a writ of error to this Court, which was granted by the Trial Court and perfected by the defendant.

It should have been stated that, at the close of the plaintiff's evidence, and again at the close of all the evidence, the defendant moved the Court to peremptorily direct the jury to return a verdict for the defendant, which motions were overruled, and the cases were submitted to the jury with the result before stated.

For convenience, we will, in this opinion, refer to the parties as plaintiffs and defendant, according to their respective positions on the record in the Trial Court.

In this Court twelve assignments of error have been filed on behalf of defendant, all of which were included in each of the defendant's motions for a new trial below.

The first assignment is that there is no evidence to support the verdict.The second assignment is that the Court erred in failing to sustain the motion for peremptory instructions in these cases made by the defendant Duling at the close of plaintiff's testimony.The third assignment is that the Court erred in failing to sustain the motion for peremptory instructions made by defendant Duling at the close of all the evidence.Through his assignments numbered four to eleven, inclusive, defendant complains of the action of the Trial Court in refusing to give in charge to the jury certain instructions requested by the defendant.Through his twelfth assignment defendant asserts that "the damages allowed are so excessive as to indicate passion, prejudice or caprice on the part of the jury."

The defendant's second assignment of error, supra, is overruled for the reason that the defendant waived his motion for peremptory instructions made at the close of plaintiff's evidence by thereafter putting on witnesses in his own behalf.Tenn. Cent. Railway Company v. Zearing, 2 Tenn.App. 451, 454, and other cases there cited.

The first and third assignments of error may be considered together, for, if there was evidence which required the submission of the case to the jury, there was necessarily some material evidence to support the verdicts.

Plaintiff Burton operates a dairy in Davidson County and sells milk to various customers in the city of Nashville and its suburbs, which milk he delivers to his customers by means of trucks specially designed for such purpose.Plaintiff Burnett was employed as the regular driver of one of Burton's milk trucks over a "route" which included the Harding Road and Kenner Avenue.

Defendant Duling is a young man engaged in the insurance business, in connection with the New York Life Insurance Company, with an office in the city of Nashville.At the time of the collision involved in these cases, the defendant lived in Deer Park, a suburban subdivision in the Belle Meadesection of Nashville, and his usual route of travel from his home to the business section of Nashville was along and over the Harding Road.

The general direction of Harding Road is east and west, and Kenner Avenue, twenty-eight feet wide, enters Harding Road from the south, but does not extend northward beyond Harding Road.

Harding Road is either sixty-four or sixty-seven feet wide, but, for practical purposes of traffic, its width may be described as divided into three sections.On its northern side there is a strip of smooth concrete, asphalt-top, pavement, twenty feet wide, used by west-bound traffic.On its southern side there is a similar strip of smooth pavement, twenty-four feet wide, used by east-bound traffic.Between the two paved portions above described, there is a macadam surface, which may be used by automobiles, but which is rougher than the aforesaid paved portions on the north and south, and not so available for fast driving.

A single-track street car line is located near the northern side of the aforesaid macadam portion of the road.The northern rail of the street car track is three feet two inches from the concrete pavement on the north, and the southern rail is twelve feet from the concrete pavement on the south.The width of the street car track from rail to rail is four feet and eight inches.

The record contains a large map made by a competent engineer by which the above stated measurements, and numerous other distances involved in the locus in quo, are established.It is thus shown that from the center of Kenner Avenue westward, on Harding Road, to the center of Woodmont Boulevard (which enters Harding Road from the south) is four hundred sixty-eight feet, and from the west margin of Kenner Avenue to the east margin of Woodmont Boulevard is four hundred thirty-nine feet.It also appears that it is down-grade (a decline of thirteen feet) from Woodmont Boulevard to Kenner Avenue, and slightly down-grade westward from Woodmont Boulevard, and that the top of an automobile approaching from the west on Harding Road could be seen at Kenner Avenue for a distance of one hundred forty feet west of Woodmont Boulevard.

About eight thirty o'clock in the morning of April 29, 1936, plaintiff Burnett drove westward on Harding Road and turned southward towards Kenner Avenue (intending to deliver milk to a customer on Kenner Avenue) and when the front of his truck had reached the south margin of Harding Road at the mouth of Kenner Avenue, the Chevrolet Coupe of defendant Duling (which the defendant was driving eastward at the time) collided with plaintiff's truck, turned it over on its side, inflicting serious personal injuries upon plaintiff Burnett, and damaging plaintiff Burton's truck.Defendant's Chevrolet Coupe was practically demolished by the collision.

With respect to the negligence charged to the defendant, the declarations in the two cases are substantially the same.Each declaration contains three counts.

In the first count of plaintiff Burnett's declaration it is averred that while plaintiff was driving his truck across the Harding Pike and already in the intersection, the defendant came over said rise, (at Woodmont Boulevard) and approached said intersection, travelling in a fast, reckless and unlawful rate of speed under the circumstances, and did negligently, carelessly and unlawfully run his automobile into the side of the truck driven by the plaintiff with great force and violence; that at the time defendant drove his car over the top of the aforesaid rise in the Harding Road, he did not have his car under such control as to be able to stop within the range of his view when he passed the crest of the said rise, and that defendant's fast and negligent driving and his failure to have his said car under such control was the proximate cause of the collision.

In the second count, it is averred that, after plaintiff reached the intersection of Kenner Avenue and the Harding Road, and while he was in the act of crossing said intersection in the truck the defendant approached said intersection from a westerly direction, driving his automobile east on Harding Pike, in a negligent, reckless and careless manner, and in wilful or wanton disregard of the rights or safety of other traffic, and without due caution and circumspection, and at a speed and in a manner so as to endanger or be likely to endanger other traffic and persons and property on said highway; that defendant was not observing and watching the road in front of him and the traffic thereon, and while operating his said automobile in the negligent, reckless and careless manner aforesaid, the defendant did run his said automobile into the intersection of Harding Pike and Kenner Avenue, and did negligently, carelessly, and unlawfully run his automobile into the side of the truck driven by the plaintiff with great force and violence; that the negligent, reckless and careless operation of his said automobile by the defendant, his failure to observe and watch the road in front of him and the traffic...