Holt v. Walsh

• Decision Date: 16 October 1943
• Citation: 174 S.W.2d 657,180 Tenn. 307
• Parties: HOLT v. WALSH (two cases).
• Court: Tennessee Supreme Court

174 S.W.2d 657

180 Tenn. 307

HOLT v. WALSH (two cases).

Supreme Court of Tennessee.

October 16, 1943

Error to Circuit Court, Hamilton County; L. D. Miller, Judge.

Separate suits by Lawrence Walsh against Marcus Holt for personal injuries sustained in an automobile accident, and by M. L Walsh, father of Lawrence Walsh, against Marcus Holt for loss of personal services and medical expenses which were consolidated. A judgment for Lawrence Walsh in the sum of $5,000 and a judgment for M. L. Walsh in the sum of $2,000 were affirmed by the Court of Appeals, and Marcus Holt brings certiorari.

Assignments of error overruled and judgments affirmed.

McAllester Harris & McAllester, of Chattanooga, for plaintiff in error.

Harry Berke and M. A. Fleming, Jr., both of Chattanooga, for defendant in error.

GAILOR Justice.

The record presents two cases which were tried before a jury in the Circuit Court of Hamilton County. The first is that of Lawrence Walsh, a minor 18 years of age, who sued Marcus Holt for personal injuries sustained in an automobile accident and recovered a judgment in the sum of $5,000. The second is that of M. L. Walsh, father of Lawrence Walsh, who sued for loss of services and medical expenses. His suit was consolidated and tried with the suit of the minor and he recovered a judgment of $2,000. After the motion for a new trial was overruled, the cases were appealed by the defendant below to the Court of Appeals, where the judgments were affirmed, and after being denied a rehearing, the defendant has filed a petition for certiorari here, which was granted and argument heard. The parties will be referred to herein as they were in the court below, the petitioner as defendant and the respondents as plaintiffs.

On May 31, 1941, Lawrence Walsh, who was then a telegraph messenger was riding a bicycle southeast on West 11th Street, where that street joins Chestnut Street at an angle of about 70 degrees, in Chattanooga, Tennessee. In the area of the intersection of West 11th Street and Chestnut Street, plaintiff was struck by an automobile being driven by the defendant, and from the collision sustained injuries for which he brought his suit. Other facts will be developed hereinafter. As we have said, the father also brought suit, and these two suits were consolidated and tried together.

The petitioner makes ten assignments of error. One of them contains a cumulation of all the assignments made in the Court of Appeals and the last is to the effect that that court committed error in overruling a petition to rehear. Obviously, a separate consideration of each of these assignments separately would make this opinion unduly long; especially, as we have carefully considered the record and feel that the result reached by the trial court and the Court of Appeals in upholding the verdicts is correct. With regard to two questions presented by the assignments, we think some clarification and modification should be made.

These questions which are the basis for the most important assignments and on which the major part of the arguments before this court were based, are: (1) The law of contributory negligence where a minor 18 years of age is the plaintiff; (2) the proper construction of the words "center point" in the city ordinance and the statute, which prohibits "making a left turn without passing to the right of the center point of the intersection."

With regard to the first question: At the time of the collision plaintiff was riding his bicycle southeast on West 11th Street, and after stopping as required by the stop sign at the southwest corner, had proceeded into the area of the intersection of that street with Chestnut Street. There is sharp conflict of testimony as to the exact point of the collision, and as to whether or not plaintiff had commenced to make a left turn on Chestnut Street at the time he was struck. We find material and substantial evidence to support plaintiff's contention that he, at the time of the collision, was still in the area of the intersection marked on the map exhibited as the prolongation of the south traffic lane of West 11th Street, and since it is evident that the trial judge, the jury and the Court of Appeals have found this fact for the plaintiff, we are bound to accept that finding here.

Petitioner's statement that "contributory negligence of the plaintiff is a question of law for the court" is incomplete. The question of law for the court's determination is whether the plaintiff, a minor 18 years of age, has by reason of his intelligence, experience, and physique, sufficient capacity to be held to the legal duty to exercise reasonable care for his own safety, under the facts and circumstances disclosed by the evidence. But, after the court has determined, as it did here, that the plaintiff has sufficient capacity, the question of whether, under the facts and circumstances disclosed by the evidence, the plaintiff did exercise reasonable care, if there is conflicting evidence, remains a question of fact for the jury under a proper charge. In Ballow v. Postal Tel. Cable Co., 12 Tenn.App. 348, 352, relied on by petitioner, there was no conflicting evidence on the facts. It was admitted that if a minor between 14 and 21 years of age could be guilty of contributory negligence plaintiff had been guilty of it. In affirming the action of the trial court in directing the verdict, the Court of Appeals said in its opinion, "the facts are not disputed, and are such that all reasonable men must reach the same conclusion therefrom."

The case before us is quite different, for...