Hatcher v. Cantrell

• Decision Date: 29 July 1933
• Citation: 65 S.W.2d 247
• Parties: HATCHER v. CANTRELL et al.
• Court: Tennessee Supreme Court

65 S.W.2d 247

HATCHER v. CANTRELL et al.

Court of Appeals of Tennessee, Middle Section.

July 29, 1933.

Certiorari Denied by Supreme Court December 15, 1933.

Appeal in Error from Circuit Court, Davidson County; A. B. Neil, Judge.

Action by Harry S. Hatcher against Harris Cantrell and another. Judgment for defendants, and plaintiff appeals in error.

Reversed, verdict set aside, and cause remanded for new trial.

Walker & Hooker, of Nashville, for plaintiff in error.

Lee Douglas and William Howard Ewing, both of Nashville, for defendants in error.

DE WITT, Judge.

On July 4, 1930, Harry S. Hatcher sustained personal injuries from being struck by a Buick Sedan automobile owned by Harris Cantrell, while being operated by his daughter, Miss Kittie Cantrell. Hatcher brought this action against Cantrell and his daughter to recover damages. Upon a trial to a jury the circuit judge sustained the motion of the defendants for peremptory instructions, made at the close of the evidence for the plaintiff, and dismissed the suit. The plaintiff's sole contention in this court is that the case should have been submitted to the jury:

First, because under the circumstances of the accident the plaintiff was not in the status of a mere volunteer upon premises of Cantrell and assisting, without express license or invitation, in rescuing the automobile from danger from a nearby fire, as held by the circuit judge.

Second, because, even if the plaintiff was such volunteer, the question whether or not the defendants were guilty of gross negligence and therefore liable to the plaintiff, was one for determination by the jury.

Hatcher and Cantrell resided two doors apart on Woodland street in the city of Nashville. Cantrell owned the automobile and it was used by his daughter with his consent. It was kept in a frame garage opening on an alley running east and west along the rear of Cantrell's premises. The alley was 21 feet 7 inches wide. The garage had space for three cars and the middle part was used for the storage of Cantrell's car. It had double doors which opened on the alley. This section was separated from the adjoining section on each side by two horizontal timbers, about 2 by 4 inches in size, one of them being about 18 inches above the ground and the other about 4 or 5 feet above it. The only evidence of the dimensions of this section of the garage is the statement of the plaintiff on cross-examination that it was "probably about" 16 feet long and 8 feet wide; and he said that the automobile was about 15½ feet long and 6 feet wide, and that it had on its rear a tank which would hold about 15 to 20 gallons of gasoline.

Immediately across the alley from this garage was a small frame house occupied by servants. The partial burning of this house led to the misfortune which the plaintiff suffered.

While the plaintiff was eating his midday meal in his home, he was informed that there was a fire in the alley. He arose quickly, started toward the fire, called Miss Cantrell, and told her that they had better get her car out of the garage. He testified: "She got the keys and we went in and proceeded to get the car out." He was accompanied, or immediately followed, by his wife, Mrs. Hatcher. They arrived at the garage at about the same time. All three of them went into the garage. Mrs. Hatcher testified: "We were just bent on getting it out." She was asked and answered:

"Q. Weren't you calling to Miss Cantrell all the time, `hurry, hurry, hurry, get your car out'?

"A. Well, we went to get it out before the fire come down and got there. That was our reason for hurrying."

She said that she was not greatly excited; that the garage was not afire; and that there was not then any danger.

The fire was then burning under the porch of the servant's house directly across the alley. Smoke was coming from under the porch. The porch was consumed and the front wall of the servant's house was charred by the fire. The garage was not ignited. Mrs. Hatcher testified: "There was a lot of people hallooing at the time." The only conclusion inferable is that the danger to the garage and the automobile was manifest, and that Mr. and Mrs. Hatcher and Miss Cantrell were hurrying to rescue the car from the danger. Miss Cantrell had with her the keys to the car. The door to the garage was quickly unlocked. All three persons entered the garage. In their hurry they could not get opened the door of the car by unlocking it. At Mr. Hatcher's suggestion Mrs. Hatcher went into the alley, picked up a brickbat, returned and with it smashed the glass to the right-hand door of the car. Mr. Hatcher saw Miss Cantrell, after the door was opened, get in the car, slide across the seat, and get in behind the steering wheel to star the motor. Mrs. Hatcher went back into the alley, stood at the east door of the garage, and held it open, as Miss Cantrell was about to move the car backward into the alley, as it was the only way to get it out.

Mr. and Mrs. Hatcher testified that he walked around the front of the car and stood between the car, opposite the front seat, and the horizontal pieces of timber. He testified that he did this because he was trying to tell Miss Cantrell how to get the car started. The window by Miss Cantrell on her left was closed. The car did not start at once. There is no evidence that Miss Cantrell heard what he may have said to her. The starter was making a noise. He admitted that he knew that the only possible way to get the car out was by backing it. He stated that he was looking both at Miss Cantrell and at the door. He was a large man, over 6 feet tall, and weighed 210 pounds. The space in which he stood was very small.

As to what then occurred, Mr. Hatcher testified that Miss Cantrell suddenly turned the steering wheel to her right, turning the front wheels to her left toward him, started backing the car out toward the east, struck him, threw him down, and dragged him to the door; that the wheel ran over his leg and broke it; that he hit the door of the garage and it was knocked down on him; that the car went on out into the alley and did not stop for some distance. He said that when the car started it came back so fast that he had no time to get out of the way; and that Miss Cantrell gave him no warning to stand back out of the way, that she was not going to back straight out of the garage but was going to cut to her left. He said that the car started just when the motor began to operate, and that the car come about as fast as a car could be run backward. He admitted that on a former trial he testified that Miss Cantrell, in trying to back the car out eastwardly, did what he would have done had he been in her situation. It is undisputed that by backing out straight, she would have gone directly toward the fire, with the gas tank ahead. It is manifest that had Mr. Hatcher been standing at the west door on the alley, holding the door open, as his wife was doing on the east side, he would not have been hurt. He and Mrs. Hatcher, of course, were voluntarily assisting Miss Cantrell. We must accept as true his statement that he took the position before the left front door of the car in order to suggest to Miss Cantrell how to get the motor started, as she seemed to have choked it at first. Her mind was occupied with her endeavor to start the motor.

In this statement we have endeavored to include all facts as testified to in support of the right of action. In his instruction to the jury, the circuit judge said:

"Mr....