Garis v. Eberling

• Decision Date: 25 January 1934
• Citation: 71 S.W.2d 215
• Parties: GARIS v. EBERLING.
• Court: Tennessee Supreme Court

71 S.W.2d 215

GARIS v. EBERLING.

Court of Appeals of Tennessee, Middle Section.

January 25, 1934.

Certiorari Denied by Supreme Court May 19, 1934.

COPYRIGHT MATERIAL OMITTED

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

Action by E. J. Eberling, administrator, etc., against Roy L. Garis. Judgment for plaintiff, and defendant appeals in error.

Affirmed on condition.

Hume & Armistead and Walter Stokes, all of Nashville, for plaintiff in error.

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

FAW, Presiding Judge.

E. J. Eberling, as administrator of his infant daughter, Sylvia Joy Eberling, obtained a verdict for $10,000 and a judgment thereon in the circuit court of Davidson county against Roy L. Garis, defendant below, and after his motion for a new trial was overruled, Roy L. Garis appealed in error to this court and is here insisting, through assignments of error and briefs and oral arguments by able counsel, that there is no evidence to support the verdict and for that reason the trial court should have sustained the defendant's motion for a directed verdict at the close of all the evidence.

It is further insisted that if the court should be of opinion that there was evidence to support a verdict for plaintiff, that the amount of the verdict is excessive, and so excessive as to indicate prejudice, passion, and caprice on the part of the jury.

There are other assignments of error, some of which challenge certain instructions to the jury as erroneous; others complain of the trial court's refusal to give the jury requested instructions; and one asserts that the trial judge erred, to the prejudice of the defendant below, in certain remarks or comments made by him in connection with his ruling upon an objection to testimony.

As a matter of convenience, we will designate the parties as they appear on the record of the trial court: E. J. Eberling, administrator, etc., as plaintiff; and Roy L. Garis as defendant.

Plaintiff's declaration contains two counts. The background out of which this action arose is well stated in the declaration, and in order that this, as well as the plaintiff's averments of negligence, may be seen, we will quote the declaration.

The first count is as follows:

"The plaintiff, E. J. Eberling, Administrator of the estate of Sylvia Joy Eberling, sues the defendant Roy L. Garis, for the sum of Twenty-Five Thousand ($25,000.00) Dollars damages and for cause of action states:

"That the deceased, Sylvia Joy Eberling, died on or about May 6, 1932, at the tender age of about five and one-half years, as the direct and proximate result of the negligence and carelessness of the defendant as hereinafter shown. That the deceased is survived by her mother and her father, the plaintiff herein, and several brothers and sisters. That the plaintiff, E. J. Eberling, is the duly appointed and qualified administrator of the estate of the said Sylvia Joy Eberling.

"That on May 6, 1932, and for many months prior thereto, the deceased lived in the home of her father and mother, located on the southerly side of Bellwood Avenue, within the city limits of Nashville, Tennessee. That the said defendant Garis also lived in a residence located on the southerly side of said Bellwood Avenue, and the residence of the defendant being about 100 feet to the east of the plaintiff's residence. That it had been customary for many months for the deceased to play with the children of the defendant in the yards and on the premises of both the residences of the plaintiff and the defendant. That the deceased child at the time of receiving the injuries from which she died, was on the premises of the defendant playing with the children of the defendant, at the invitation of the defendant and his wife.

"That the lots along the southerly side of Bellwood Avenue, and especially the lot upon which the defendant's residence is located, slopes up on a steep grade beginning at the street and increases in height toward the rear of the lot. The private driveway of the defendant's residence enters from Bellwood Avenue, extends from the street in a southerly direction along the side of the west side of the defendant's house and back behind the rear of his house to a garage, which garage is located about 20 feet to the rear of the rear wall of the defendant's residence. Defendant's side driveway conforms to the steep grade of his lot, and said driveway is therefore on a steep grade, beginning at the garage and running steeply down grade along side of his residence and into Bellwood Avenue.

"The defendant, Roy L. Garis, at the time of the injury inflicted upon the deceased, was the owner of a high powered, heavily built Studebaker Sedan automobile, which was used by the defendant for the pleasure and business of himself and his family. That the defendant had driven said automobile on many occasions previous to the time of the injuries to the deceased, and the defendant well knew, or by the exercise of ordinary care should have known, of the defective and unsafe condition of the brakes on said automobile, and especially the defective and unsafe condition of the emergency brake or hand brake on said automobile, as hereinafter shown. That the defendant had on many occasions driven his said automobile into and out of his said private driveway, and well knew the steep grade of said driveway extending from his private garage down toward Bellwood Avenue. The defendant well knew, or by the exercise of ordinary care should have known, that it was unsafe to park his automobile on said driveway, and especially unsafe to leave his automobile unattended on said driveway with children playing about the premises, and no effective block or obstruction placed under the wheels of said automobile to prevent it from suddenly starting down the steep incline of said driveway.

"That on or about May 6, 1932, the deceased Sylvia Joy Eberling, being a young child of very tender years, was on the premises of the defendant, playing with the defendant's children, at the invitation and with the permission of the defendant and his wife. That the defendant drove his said automobile into his said driveway, brought it to a stop near the rear of his residence and on the slanting portion of said driveway. That the defendant pulled up and applied the hand brake or emergency brake of his said automobile, and without taking any other or further precaution to block or hold said automobile in its parked position, left the same unattended. That the said emergency brake or hand brake on defendant's said automobile was in a dangerous and defective condition, in that the portions of said brake which were designed to hold and maintain the said brake in its applied condition were defective, which defect was well known by the defendant, or in the exercise of ordinary care should have been known, to him, especially when leaving his said automobile in that position on the driveway, and well knowing that the plaintiff's child and other children of tender years were on the premises.

"That the defendant, thus leaving his automobile unattended then went about other affairs about his yard, such as trimming grass and tending flowers, and thus while going about his premises did actually see the plaintiff's deceased child and other children playing around and about his said automobile, but took no further precautions to remedy the unsafe condition in which he had left his automobile, and gave no warning to the plaintiff's deceased child, or to its parents or anyone else, of the dangerous situation which he had created by the parking of his automobile in the manner and under the circumstances aforesaid.

"That on previous occasions the defendant had not left said automobile unattended standing on the driveway as hereinbefore stated, but had previously either placed his automobile within his garage where the floor was level, or had driven it to a point in the rear of his residence where the ground was level and where said automobile was in a safe position. The plaintiff and his wife, mother and father of the deceased, in permitting their child to go on the premises of the defendant, relied upon and expected the defendant to refrain from placing his said automobile in a dangerous position, and expected him to either place his automobile in the garage or on the level place at the rear of the residence, as had been the defendant's custom and habit theretofore.

"That while the plaintiff's child, Sylvia Joy Eberling, was playing with other children around and about the defendant's said automobile, while it was parked as aforesaid on defendant's driveway, the deceased child and probably other children climbed upon a trunk attached to the rear portion of said automobile. As a direct and proximate result of the said automobile being left unattended on the steep driveway, with only a defective hand brake applied, it started off down the steep driveway toward Bellwood Avenue. Thereupon, the deceased attempted to get off the trunk and off the rear part of the car when it began to move. As she was getting off of the car she was thrown to the ground and caught under the rear wheel of the car as it moved down the grade, the rear wheel of said automobile crushing and mangling her body and inflicting internal injuries, from which injuries she died within a few hours.

"That as a direct and proximate result of the defendant's negligence, as aforesaid, the deceased suffered the most excruciating pain from the time of the injuries until the time of her death. That she was immediately taken to the hospital where everything possible was done to relieve her suffering and save her life, but all of which was unavailing.

"The defendant, though liable, refused to pay; therefore the plaintiff sues and demands a jury to try this cause."

The plaintiff reaffirmed and adopted the first eight paragraphs of the first count of the declaration as a part of the second count, and...