Finchem v. Oman

• Decision Date: 07 April 1934
• Citation: 72 S.W.2d 564
• Parties: FINCHEM v. OMAN.
• Court: Tennessee Supreme Court

72 S.W.2d 564

FINCHEM v.OMAN.

Court of Appeals of Tennessee, Middle Section.

April 7, 1934.

Certiorari Denied by Supreme Court June 23, 1934.

Appeal in Error from Circuit Court, Davidson County; A. G. Rutherford, Judge.

Action by Jesse Finchem against John Oman, Jr. Judgment for defendant, and plaintiff appeals in error.

Reversed, and cause remanded.

Higgins & Moore, of Nashville, for plaintiff in error.

Manier & Crouch and Andrew Ewing, all of Nashville, for defendant in error.

FAW, Presiding Judge.

Jesse Finchem suffered serious, painful, and permanent personal injuries as the result of the overturning of his automobile on the night of Saturday, October 18, 1930, at a point on state highway No. 15 in Franklin county, Tenn., and his automobile was practically demolished in the same casualty.

Thereafter he sued John Oman, Jr., in the circuit court of Davidson county for $25,500 as damages, averring that the proximate cause of the aforesaid injuries to his person and his automobile was negligence of defendant Oman in the particulars stated in plaintiff's declaration, and the case was thereafter taken up for trial before a jury upon the issues made by the defendant's plea of not guilty to the plaintiff's declaration, and the trial proceeded to the conclusion of all the proof, when the trial court, on motion of the defendant, directed the jury to return a verdict for the defendant, which was done, and the plaintiff's suit was dismissed at his cost.Thereupon, the plaintiff, after his motion for a new trial had been overruled, appealed in error to this court, and is here insisting, through assignments of error and supporting brief and argument, that the learned trial judge erred in peremptorily directing a verdict for the defendant.No other error is assigned.

It is averred in plaintiff's declaration that in the month of October, 1930, defendant was engaged, by public contract (a contract with the state department of highways and public works), in grading and draining a certain highway in Franklin county, known as highway No. 15, leading from Winchester in Franklin county to Fayetteville in Lincoln county, and at certain points the construction of highway No. 15 was along and on the "old Winchester and Belvidere Public road known at the time as State HighwayNo. 97," and on or about October 18, 1930, the defendant was so engaged, through servants, and during the day of the 18th they had been engaged in raising the grade of a portion of the old Belvidere highway by bringing from other points loose dirt, conveyed by machinery, and pouring it in and upon the old roadbed, raising the road some 2 or 3 feet; that defendant was building the grade toward Winchester from the direction of Huntland, over the old roadbed to the height aforesaid as progress was made; that defendant's servants and agents worked as aforesaid on the day of the 18th, and at the point where they quit work in the evening they left an embankment of loose dirt across the said public road to a height of some 2 or 3 feet; that this embankment was not an abrupt or perpendicular bank, but was a gradual slope from the old roadbed back several feet to the height of the new proposed roadbed and the grade being constructed; that this new fill was fresh loose dirt, and the defendant quit work in the evening of October 18th, and the road was thus negligently left in the darkness of that night.

The above-stated averments of the declaration are supported by undisputed proof, except that there is persuasive evidence in the record that the vertical height of the "embankment"(usually referred to by the witnesses as the "fill") was not more than 15 to 18 inches.However, the testimony of plaintiff and at least three witnesses in his behalf is to the effect that the vertical height of the fill was 3 feet or more.

It also appears that the fill was not entirely "across the public road," but was considerably more than half way across same.

Plaintiff further avers in his declaration that, while he was driving his automobile along said old road in the direction of Huntland, and from the direction of Winchester, in a reasonably cautious, prudent, and careful manner, in the nighttime of October 18, 1930, he approached the aforesaid embankment and, without any fault on his part, ran into and upon said loose dirt, and as a result his car was turned over and demolished and plaintiff was thereby injured (which injuries are described in the declaration); that his car was then and there equipped with lights and brakes as the law requires and prudence would dictate; that the dirt making said fill tapered, at an angle and slant, from the old roadbed on which plaintiff was driving gradually to the top of the fill, a distance of several feet, and was thus left by defendant so that it did not appear, neither was it likely to appear, to plaintiff to be a place of danger, as it was; that defendant left these conditions in the darkness of the night without a sign or lights or warning to attract the attention of those who might be using the road, and did not leave "any watchman or guard in charge of the work at said time and place, in which particulars and regards defendant was grossly and recklessly negligent."

Although the record is of considerable size (about 500 pages), we find that the case, as it comes to this court, is within a narrow compass.

The motion on behalf of defendant below for peremptory instructions was specifically based upon two grounds, viz.: (1)"That there is no evidence of any negligence on the part of defendant creating any liability on defendant"; and (2)"that the undisputed evidence shows that the plaintiff was guilty of such contributory negligence as bars his recovery."

The trial court sustained the above motion for peremptory instructions on the second of the two grounds thereof, as appears from his statement to the jury, which was as follows:

"The Court: Gentlemen of the jury, counsel for the defendant has moved the Court to instruct the jury to return a verdict in favor of the defendant on two grounds; one is that there is no evidence of negligence on the part of the defendant, and the other is that there is evidence of negligence on the part of the plaintiff.Now, on this second ground, I am directing the jury to find a verdict in favor of the defendant, and it is your duty to do so.But I think you are entitled to understand the reason for it.Under the law in this State and in every other state that I know anything about, a man driving an automobile must be constantly on the lookout ahead, and to see the things that can be seen by the exercise of ordinary care; and this young man said he had good headlights and he didn't see this fill and didn't see this turn-out in the part of the old road that was wide enough for him to go around to the left, and he didn't see this red clay rise until after he got up on it.Now, gentlemen, that won't do.The law is, you must see everything that is within reach of your headlights — and he said he had good headlights, driving out, revealing the entire road.It is just a case of contributory negligence on his part; and where the plaintiff is guilty of negligence that contributes to it in any degree, proximately, he cannot recover anything.

"So I am directing the jury to return a verdict in favor of the defendant.So say you all?(Affirmation by the jury.)"

In this courtthe defendant is insisting that his motion for a directed verdict should have been sustained for both of the reasons stated in the motion.

It is, to say the least, doubtful whether defendant is in a position to rely on the first ground of his motion for peremptory instructions, for the trial judge stated, before directing the verdict, that, if there was nothing in the motion except the question of negligence on the part of defendant, the case would have to go to the jury.The defendant did not except to the court's ruling adverse to him on the first ground of his motion, and he neither moved for a new trial nor appealed.

But assuming that the question, as to whether there was or not evidence of the alleged negligence on the part of defendant to take the case to the jury, is open for decision in this court, we are satisfied that the trial judge did not err in overruling that ground of the motion.

The embankment or fill on and across a portion of the highway at the point in question was not a nuisance, as alleged in the first count of plaintiff's declaration, for defendant had a lawful right to erect the fill in the process of the construction or reconstruction of the highway, under his contract with the state highway department; but reasonable men could not differ about the fact that the fill disclosed by the proof constituted an obstruction to the customary use of the highway.The defendant, therefore, owed to travelers on the highway the duty of using proper precautionary means to warn them of the presence of the obstruction.The proof was conflicting with respect to the degree of the danger to be reasonably anticipated from the presence of the fill in the highway, and also as to whether defendant did or did not display a "red light" on the fill as a warning signal.

It is true, as argued for defendant, that the state department of highways, through its officers and representatives, and not the defendant, determined the location and height of the fill, and that there is no evidence that defendant constructed it in a negligent manner, or otherwise than according to the plans and specifications prescribed by the highway department; but this did not relieve defendant of the duty to adopt reasonable safeguards to protect the traveling public from injury which might be reasonably apprehended from the presence of the obstruction thus created in the highway.The undisputed proof shows that no effort was made to prevent the free use of the highway by the traveling public during the progress of the work in question, and that such...