Elrod v. Town of Franklin

• Decision Date: 13 April 1918
• Citation: 204 S.W. 298,140 Tenn. 228
• Parties: ELROD v. TOWN OF FRANKLIN.
• Court: Tennessee Supreme Court

204 S.W. 298

140 Tenn. 228

ELROD v. TOWN OF FRANKLIN.

Supreme Court of Tennessee.

April 13, 1918

Error to Circuit Court, Williamson County; Douglas Wikle, Judge.

Action by Mrs. Clara A. Elrod against the Town of Franklin. Judgment for plaintiff was reversed by the Court of Appeals, and plaintiff brings error. Judgment of the Court of Appeals reversed, and that of the circuit court affirmed.

J. C Eggleston and Henderson & Courtney, all of Franklin, for plaintiff in error.

P. E Cox and Faw & Crockett, all of Franklin, for defendant in error.

LANSDEN J.

This is an action for damages for personal injuries received by Mrs Elrod as a result of an alleged defect in a sidewalk within the corporate limits of the defendant. The accident occurred December, 1913, and a suit was brought February 5, 1914, against the defendant and another who was an individual property owner abutting on the sidewalk where the accident occurred. Defendant pleaded that the plaintiff had not given notice as required by chapter 55, Acts 1913. The plaintiff demurred to this plea, and the demurrer was sustained, and the plea stricken out. On September 24, 1914, defendant filed a plea of not guilty, and on the same day plaintiff took a nonsuit. Thereafter, but on the same day, plaintiff began suit by original summons against the defendant alone. When the first suit was brought, the plaintiff had not given the notice required by the act aforesaid, but on March 9, 1914, while the first suit was pending, the notice was given. The declaration was filed in the second suit January 6, 1915, to which defendant pleaded not guilty, April 6, 1915, together with a special plea in which it was averred that the plaintiff had failed to comply with chapter 55, Acts 1913, "before the suit was brought," and also "failed to give the defendant the notice provided to be given in said act before a suit of the nature of this suit can be brought." This plea further averred that the two suits brought by plaintiff were one and the same action to recover damages for the same injury, for the same negligence, and that, inasmuch as the first suit was brought before notice was given, the second suit could not obviate this defect in plaintiff's cause of action. Upon demurrer by plaintiff this plea was stricken from the files.

The case was tried at the July term, 1915, and resulted in a mistrial. During the trial defendant moved for a directed verdict at the close of plaintiff's proof and at the close of all the proof. This motion was overruled. Later defendant moved for a new trial, and assigned as ground for a new trial the failure of the trial judge to sustain its motion for a directed verdict. This motion was overruled, and defendant prayed an appeal which was refused. It preserved a wayside bill of exceptions to the action of the court in overruling its motion for a new trial. There was another trial at the August term, 1916, which resulted in verdict for plaintiff in the sum of $6,500. The trial judge required a remittitur of $1,500, which being made, he entered judgment for plaintiff in the sum of $5,000.

The proceedings in the court below are set out in detail because the defendant assigns errors upon them. The idea seems to be that the defendant acquired some right by virtue of the fact that the first suit was brought before notice was given as required by the act of 1913, which would prevent the plaintiff from taking a nonsuit, or of which the plaintiff could not deprive it by taking a nonsuit.

Plaintiff introduced evidence tending to show that on the night of the accident she had been to a picture show with her father. As she returned from the picture house to the residence of her father, about 9:30 p. m., with whom she was living, and accompanied by him, the night was dark, drizzly, gloomy, and disagreeable. She was walking with her hand in her father's arm, and they were both proceeding rapidly. They were traveling out Lewisburg avenue within the corporate limits of defendant upon a dirt sidewalk which had been constructed by adjacent property owners before it was within the corporate limits of defendant. She struck an obstruction in the sidewalk with her foot, which threw her violently to the ground and rendered her unconscious for a time and inflicted other injuries upon her. She had not noticed this obstruction before, and did not know it existed. This part of the city of Franklin is not as thickly inhabited as other portions of the city, and the sidewalk in question is not used as frequently as other sidewalks. However, it is inhabited and it is used, and at the time of the accident it was within the corporate limits of the city, and had been for about ten years.

The city of Franklin was originally chartered in 1815 by special act of the Legislature. Subsequently this charter was amended divers and sundry times, but in 1903, by chapter 77 of the Acts of that year, the franchise theretofore exercised by the town of Franklin was abolished, and the various acts and amendments incorporating it were repealed. At the same session of the Legislature the town of Franklin was reincorporated by chapter 79 of the Session Acts of that year, and, among other things, it was given power to provide water for its inhabitants by laying pipes for the conducting and distributing of water over the town. By Ordinance No. 18 the city enacted that, "when it is desired to introduce a water service pipe into any premises from a main passing along said premises, the employés of the town will run the pipe at right angles with said main pipe to the inside curb line of the street, at which point a metallic curb box will be placed on the grade line of the sidewalk." It was also given charge of the streets and sidewalks within its corporate limits.

The obstruction over which plaintiff fell was a metallic curb box located from seven to ten inches inside of the grade line of the sidewalk and protruding above the surface of the sidewalk from two to three inches. This curb box was installed about the years 1907 or 1908 after the granting of the charter under which the city is now operating, and after the passage of the ordinance aforesaid. An officer of the city visited this curb box monthly for the purpose of reading the meter contained in it. The recorder passed over the point where plaintiff fell almost weekly, and both of them say they did not notice the obstruction. Nevertheless plaintiff has offered evidence tending to show that the curb box is inside of the sidewalk and above the surface as stated, and has been so for a number of years.

When the plaintiff fell she was thrown to the ground with such force that she was unable to walk home and was confined to her bed for three or four days afterward. She was attended by physicians, who finally recommended that she consult experts, who examined her and recommended an operation. Plaintiff says that before the fall she attended to her household duties, took in boarders, and sewed, and worked without any pain. After the fall she suffered severe pain in the back of the neck, the head, and the hip. She has to go now most of the time upon crutches. She had the operation indicated above, and, so far as known, made a complete recovery from the operation. Since then she has tried to work at different things, but has been unable to do so because of the pain in the hip and the head.

Plaintiff is the mother of three children, all of whom were born before her injury. When she was operated on the surgeon found a slight laceration of the cervix and perineum, together with a retroversion and adhesions, which fixed the womb in its retroverted position. The ovaries were lying under the womb and contained a number of small cysts. The fallopian tubes were inflamed and thickened in their outer half. These conditions probably existed before the accident, but the proof is that a fall such as plaintiff sustained would probably increase the retroversion and might possibly produce it. There is proof that the condition of plaintiff's hip is permanent.

When the trial judge entered judgment for $5,000 in favor of plaintiff, both parties appealed to the Court of Civil Appeals. In that court errors were assigned by both parties, and the judgment of the court below was reversed, and the case remanded for a new trial. The court held that there was no error in overruling defendant's motion for directed verdict, but sustained the errors assigned to the action of the trial judge in his charge to the jury. The Court of Appeals sustained three assignments of error made in that court by the defendant. The first assignment sustained was for failure of the trial judge to give in charge the following special request:

"The court instructs you that the city does not insure the lives of those who use its sidewalks and streets. All that the law requires is that the sidewalks should be reasonably safe for travel thereon, and if you find from the evidence that the sidewalk in question was reasonably safe your verdict must be for the defendant. Likewise the law imposes a duty upon those using sidewalks to exercise ordinary care and diligence for their own safety."

The learned trial judge in his principal charge to the jury upon the subject under consideration gave the following instructions:

"The court instructs you that the city does not insure the lives of those who use its sidewalks and streets. All that the law requires is that the sidewalks should be reasonably safe for travel thereon, and if you find from the evidence that the sidewalk in question was

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