Dunnivant v. Nafe

• Decision Date: 06 April 1960
• Citation: 10 McCanless 458,334 S.W.2d 717,206 Tenn. 458
• Parties: Marvin DUNNIVANT v. Nolan NAFE et al. Lucile HALL, b/n/f, etc. v. Nolan NAFE et al. Mrs. Velma LAYNE, Adm'x, v. Nolan NAFE et al. 10 McCanless 458, 206 Tenn. 458, 334 S.W.2d 717
• Court: Tennessee Supreme Court

Page 717

334 S.W.2d 717

Marvin DUNNIVANT v. Nolan NAFE et al.

Lucile HALL, b/n/f, etc. v. Nolan NAFE et al.

Mrs. Velma LAYNE, Adm'x, v. Nolan NAFE et al.

10 McCanless 458, 206 Tenn. 458, 334 S.W.2d 717

Supreme Court of Tennessee.

April 6, 1960.

Elmer L. Cooke and Joseph A. Freemon, Lawrenceburg, for Marvin Dunnivant, Lucile Hall and Mrs. Velma Layne, Adm'x.

MacFarland & Colley, Columbia, for defendant Hines.

Harwell, Boston & Weatherford, Lawrenceburg, for Nolan Nafe and Merrill Nafe.

FELTS, Justice.

These three suits grew out of an accident to Dunnivant's automobile, injuring him and his daughter and killing his wife. He sued for the injuries to himself and the damages to his car, his daughter sued for her injuries, and Mrs. Layne, Administratrix, sued for the death of the wife; each of the suits being brought against defendants, Nolan Nafe and his father Merrill Nafe, and Gerdis Buford Hines.

The declarations were demurred to, then amended, and, as amended, were met by further demurrers. The case were heard together, and the Trial Judge sustained the demurrers and entered judgments dismissing the actions. Plaintiffs appealed in error, and the question debated here by learned counsel is whether the facts alleged in the declarations were sufficient to charge defendants with liability.

Inasmuch as each of the declarations averred the same facts as to how the accident and the injuries occurred, counsel for plaintiffs have directed attention to Dunnivant's declaration as stating the facts decisive of each of the cases; and since counsel for defendants have acquiesced in this procedure, we likewise follow it. The gist of the case averred by Dunnivant's declaration was this:----

Defendant Nolan Nafe was driving the automobile of his father, with the latter's consent, and defendant Gerdis Buford Hines was driving his automobile; and they negligently stopped and parked these cars near the crest of a steep hill on each side of the road so as to obstruct normal traffic and in a manner calculated to cause damage and injury to motorists using the road in a normal manner.

Plaintiff Dunnivant was driving his automobile in which his wife and daughter were riding. As he came up this steep hill and approached the crest of it, he saw these two automobiles in front of him, negligently parked on opposite sides of the road so as to obstruct his passage. 'Plaintiff stopped his automobile and as a result of a brake failure, his automobile rolled back down the hill and ran off a bridge overturning and demolishing said car and severely injuring your plaintiff'. (Italics ours.)

The declaration, as amended, averred that defendants had negligently parked the automobiles at the top of the steep hill so as to create a situation of danger to motorists using the road with due care and in a normal manner; that plaintiff, operating his automobile in a prudent manner, came up the hill and suddenly saw these automobiles obstructing his passage; and, in this connection, the declaration further averred:

'That your plaintiff caught in this emergency by the negligence of defendants Nafe and Hines brought his vehicle to an abrupt stop. That immediately thereafter his automobile went out of control and started rolling backwards down this steep, dangerous hill. That said automobile continued to roll back down off the hill and ran off a bridge, overturning and completely destroying your plaintiff's automobile and severely injuring your plaintiff'. (Italics ours.)

While the demurrers to the declarations, as originally filed, and also as amended, contained a number of grounds, all of such grounds went to the proposition that the declarations alleged no negligence on the part of defendants that was or could be the proximate or legal cause of the injuries sued for, but showed that such injuries were brought about by a new, independent, unforeseeable, intervening cause. The learned Trial Judge so held.

Taking the facts of the declarations as true and allowing every reasonable intendment in their favor, as we must do in testing the declarations by demurrer, are they sufficient to state a cause of action against defendants?

As we have seen, they averred that defendants parked their automobiles on each side of the road near the crest of a steep hill so as to create a situation of danger to motorists using the road. In so doing, defendants were guilty of negligence, creating an unreasonable risk of harm to others; and they would be liable for all the injuries within the reasonable range of such risk, whether they could have been foreseen or not. Spivey v. St. Thomas Hospital, 31 Tenn.App. 12, 25, 211 S.W.2d 450; Kingsport Utilities v. Brown, 201 Tenn. 393, 401, 299 S.W.2d 653; City of Chattanooga v. Rogers, 201 Tenn. 403, 410, 299 S.W.2d 660; Friendship Telephone Co. v. Russom, Tenn.App., 309 S.W.2d 416, 419-421.

So, if a motorist, approaching the crest of this hill, as plaintiff was, using due care, but failing to see the parked cars in time, had collided with one of them, or if he had run off the road in an effort to avoid a collision; or if he had been injured in any other usual, normal way that might...