East Tennessee & Western North Carolina Motor Transp. Co. v. Brooks

• Decision Date: 25 November 1938
• Citation: 121 S.W.2d 559,173 Tenn. 542
• Parties: EAST TENNESSEE & WESTERN NORTH CAROLINA MOTOR TRANSP. CO. v. BROOKS.
• Court: Tennessee Supreme Court

121 S.W.2d 559

173 Tenn. 542

EAST TENNESSEE & WESTERN NORTH CAROLINA MOTOR TRANSP. CO. v. BROOKS.

Supreme Court of Tennessee.

November 25, 1938

Error to Circuit Court, Hamblen County; Shelburne Ferguson, Judge.

Action by R. L. Brooks, administrator of Tressa Brooks, deceased against the East Tennessee & Western North Carolina Motor Transportation Company to recover for the death of deceased caused when deceased was allegedly struck by defendant's truck. Judgment for plaintiff for $5,000 was affirmed by the Court of Appeals, and defendant brings certiorari.

Reversed and dismissed.

Meek & Tate, of Knoxville, for plaintiff in error.

John R King and W. T. Coleman, both of Morristown, for defendant in error.

GREEN Chief Justice.

This suit was brought by the administrator of Tressa Brooks alleging that she was killed by the negligent operation of a motor truck belonging to East Tennessee and Western North Carolina Motor Transportation Company, hereafter called defendant. There was a verdict and judgment in favor of the administrator for $5,000 in the circuit court. This judgment was affirmed by the Court of Appeals and we have granted a petition for certiorari.

The deceased was killed on the Andrew Johnson Highway, near Russellville, Tennessee, about dark on the evening of November 28, 1936. She was run down by a truck and there is ample evidence as to the negligent operation of this vehicle. The controversy is as to whether this truck was the property of the defendant and further as to whether it was being operated in defendant's business at the time of the accident.

Witnesses near the point of the accident saw the truck that ran over the young woman and these witnesses could only describe it as a large, yellow truck with a canvas drop curtain in the rear. These witnesses did not get the license number of the truck nor did they observe any lettering on the body of the vehicle. There was testimony as to the speed the truck was making at the time of the accident, which occurred, according to plaintiff's theory, about 6:20 p. m. The truck was going east. At 6:42 p. m. witnesses saw a large, yellow truck, with a canvas drop curtain in the rear, pass Mosheim, between thirteen and fourteen miles east of Russellville. One of these witnesses testified that this truck seen at Mosheim bore the name of defendant on its body. A calculation is made of the time necessary for the truck that struck deceased, traveling at the rate of speed proven, to proceed from Russellville to Mosheim, and from this it is deduced that the truck seen at Mosheim, with the drop curtain in the rear and bearing the name of the defendant, was the same truck that ran over the deceased at Russellville.

If we allow the inference drawn by the administrator as permissible, nevertheless the case is not made out. Such proof and such inference only go to the extent of indicating that a truck owned by the defendant ran over the young woman. There is nothing to show that this truck was being operated with the permission of the defendant and that it was being used in defendant's business at the particular time.

It is true that the defendant operates a line of freight trucks between Knoxville and Johnson City and that these trucks pass along the Andrew Johnson Highway and go through Russellville and Mosheim. It is further conceded by the defendant that one of its trucks, operated by one of its employees, hauling freight on the regular schedule, passed along this highway going east and passed through Russellville somewhere near the time of the accident. The driver of this truck, however, said that he struck no woman or other object on this trip, and employees of defendant who examined the truck when it reached Johnson City testified that the body of the truck showed no sign of anything having come in contact with it. Furthermore the employees of defendant testified that the truck going from Knoxville to Johnson City on this particular evening had solid steel doors in the rear, as did all defendant's trucks engaged in transportation between city and city. They said that defendant had no trucks with canvas drop curtains in the rear engaged in such transportation. That the only trucks owned by defendant with canvas drop curtains in the rear were...