Harrison v. Pittman

• Decision Date: 01 March 1976
• Citation: 534 S.W.2d 311
• Parties: Richard HARRISON and J. O. Harrison, Petitioners, v. Linda K. PITTMAN, Respondent.
• Court: Tennessee Supreme Court

Page 311

534 S.W.2d 311

Richard HARRISON and J. O. Harrison, Petitioners, v. Linda K. PITTMAN, Respondent.

Supreme Court of Tennessee.

March 1, 1976.

Kendred A. White, White & Witt, Madisonville, for petitioners.

Clifford E. Wilson, Kinnard & Wilson, Madisonville, for respondent.

OPINION

HARBISON, Justice.

This case involves a claim for personal injuries by respondent, Mrs. Linda K. Pittman, arising out of an automobile accident which occurred in Monroe County on July 20, 1972. Mrs. Pittman was a passenger in an automobile owned and driven by her husband. This automobile was proceeding in an easterly direction on Acorn Gap Road at a point where this road intersects a through or arterial roadway, known as Oak Grove Road. The latter road runs generally in a north-south direction.

The accident occurred at approximately 5 a.m., before sunrise, and at a time when all of the witnesses testified that there was complete darkness.

Both of the roadways in question are paved, two-lane county roads. At the southwest corner of their intersection is situated a church, and there is a paved apron adjacent to and along Acorn Gap Road beside and in front of this church. On the northwest side of the intersection there is open area, consisting of an old cemetery. On the southeast corner of the intersection is a newer cemetery, and all four corners of the intersection are open and unobstructed, except possibly for some weeds or summer growth, as testified to by Mr. Pittman. The intersection is leval, and a driver of a motor vehicle proceeding on either of the two roadways has an unobstructed view for a considerable distance, probably at least 150 to 200 yards. As one proceeds in a southerly direction along Oak Grove Road, the road descends a slight grade into the intersection, but it is uncontradicted that a driver of a vehicle approaching the intersection of Acorn Gap Road could see at least 150 yards to the north along Oak Grove Road.

Petitioner Richard Harrison was driving his father's automobile in a southerly direction along Oak Grove Road at a speed which he estimated at from 50 to 55 miles per hour. The lights on his automobile were burning, and there were no other vehicles in the area, except the Pittman automobile. Harrison was en route to his place of work, and testified that he was in no particular hurry, and that he was driving at a normal rate of speed. He has no memory of the facts of the accident, and remembers nothing that occurred after he reached a point about 150 yards north of the intersection of Acorn Gap Road. His next recollection is awakening in the hospital some three days later, and there is ample medical evidence in the record that he sustained a head injury and was disoriented for more than two days following the accident.

Mr. and Mrs. Pittman were approaching the intersection from the west, driving east, and both of them testified that the lights on their automobile also were burning. Mr. Pittman said that the stop sign governing traffic on Acorn Gap Road was situated more than 90 feet from the actual intersection, so that he did not stop his automobile at the stop sign, but said that he came on up to the edge of Oak Grove Road. At the trial of this case Mr. Pittman did not at any time state that he actually brought his vehicle to a stop. He did so state in a discovery deposition, and Mrs. Pittman testified that he stopped. Mr. Pittman, however, said that he slowed and looked to his left, and saw nothing coming. He said that his view was partially obstructed by some weeds growing in the northwest corner of the intersection, in the cemetery area, and he proceeded to pull his automobile out into Oak Grove Road and crossed one-half of the road before striking the Harrison automobile in its right front side. There was a terrific impact between the two vehicles, both of which sustained severe damage. The two vehicles proceeded from 35 to 60 feet southerly on Oak Grove Road, and came to rest with the Harrison vehicle off the Oak Grove Road, on the easterly side, or to the left, insofar as Harrison was concerned. The Pittman automobile was athwart Oak Grove Road, angled against the Harrison vehicle after the accident.

There is no question but that some lights were burning on the Harrison vehicle after the accident. Two witnesses saw them and one of the witnesses testified that he gave instructions to have the lights turned off, because Mr. Harrison's mother, who had come to the scene, was apprehensive that there might be a fire.

Petitioners Harrison sued Mr. Pittman for the personal injuries of Richard Harrison and the property damage of his father. Mr. and Mrs. Pittman each sued the Harrisons for their respective personal injuries, and Mr. Pittman sued for property damage and loss of consortium.

At the conclusion of the evidence in chief in the action brought by the Harrisons, a motion for directed verdict was made on behalf of Mr. Pittman. This motion was overruled. At the conclusion of all of the evidence, this motion was renewed and again overruled. At that time the Harrisons also moved for directed verdict in the actions against them, and these motions were overruled.

The case was put to the jury under proper instructions by the trial judge as to negligence and contributory negligence of all parties, including the passenger, Mrs. Pittman. No exceptions were taken at the time of the instructions, insofar as Mrs. Pittman was concerned.

After deliberating for some time, the jury returned into court and asked for further instructions as to what the effect of negligence on the part of all parties would be. The trial court again instructed the jury, without exceptions from any party, as to the effect of negligence of the drivers and again differentiated the status of a passenger in an automobile.

The jury thereupon returned a verdict in which it found all parties guilty of negligence and dismissed all of the actions.

A motion for new trial was filed on behalf of Mrs. Pittman alleging, among other things, that the verdict was contrary to the evidence, and also alleging that the trial judge was in error in giving instructions as to contributory negligence on her part. She also complained of the failure of the trial judge to give an instruction, requested on behalf of her husband, to the effect that his driving an automobile without a valid operator's license should not be considered as negligence. This assignment will be discussed in a later portion of this opinion.

Insofar as the record before us reveals, no motion for a new trial was made on behalf of Mr. Pittman or on behalf of the Harrisons. In all events, no appeal was perfected on behalf of any of those parties, so that judgment on the jury verdict, finding both drivers guilty of negligence, became final as to them.

It is important to note at this point that no motion for a directed verdict on behalf of Mrs. Pittman was made at the trial, prior to the submission of the issues to the jury. Indeed the record shows that at the conclusion of all of the evidence, counsel for Mr. and Mrs. Pittman stated:

'We submit that the action in favor of the Harrisons should be dismissed and that the jury should be allowed to consider the cases of the Pittmans, in both cases.'

The issues were submitted to the jury, and, as stated, the jury resolved them against the Pittmans.

In a divided decision, however, the Court of Appeals reversed the jury verdict in the case of Mrs. Pittman, and in effect granted a directed verdict in her favor. The majority opinion stated that the court could find no material evidence of contributory negligence on the part of Mrs. Pittman, and the case was remanded for a new trial as to her, limited to the issue of damages only. There was a dissenting opinion by one member of the court, who felt that issues of fact were presented, which were appropriate for jury determination.

We granted certiorari, and we are of the opinion that the Court of Appeals was in error, in effect, directing a verdict on behalf of the passenger, Mrs. Pittman. There was conflicting testimony in this record, and differing and conflicting inferences could reasonably be drawn therefrom. Viewed most favorably to Mr. Harrison, as this record must be in considering whether Mrs. Pittman is entitled to a directed verdict in her behalf, the jury could reasonably have concluded that Mr. Harrison was swerving to his left to miss the Pittman automobile which was coming through an intersection on a subordinate highway. There is no question but that Mr. Pittman's car did not strike the Harrison car until Pittman reached the center of the highway. Markings on the highway, testified to by Mr. Harrison's father, indicated that at least some wheel markings were found in the left lane for travel for Richard Harrison, and Harrison's automobile ultimately went off the highway to its left. It is thus clearly inferable that the vehicle on the favored highway was moving to its left, attempting to avoid a collision with an automobile which had either entered the intersection without stopping or, having stopped, was proceeding in violation of the rules of the road governing subordinate highways. The jury could further have inferred from Mr. Pittman's testimony that he was unable to see because of weeds when he reached the intersection of Acorn Gap Road and Oak Grove Road, and that he therefore came on into Oak Grove Road in an effort to see, but that both he and his wife failed to see an automobile which was clearly visible, with its headlights burning, proceeding down the favored highway and moving to its left to avoid striking them. The jury simply did not have to believe the brief testimony of Mrs. Pittman to the effect that her husband stopped, that she looked to her left and to her right and saw nothing, and that there was no time for her to give an outcry or warning. If Mr. Pittman indeed failed to stop, or if he moved out into the highway in an effort to see...