Hood v. Allen

• Decision Date: 10 February 1950
• Citation: 190 Tenn. 56,16 A.L.R.2d 1286,26 Beeler 56,227 S.W.2d 534
• Parties: , 190 Tenn. 56, 16 A.L.R.2d 1286 HOOD v. ALLEN et al. (two cases).
• Court: Tennessee Supreme Court

Page 534

227 S.W.2d 534

26 Beeler 56, 190 Tenn. 56, 16 A.L.R.2d 1286

HOOD v. ALLEN et al. (two cases).

Supreme Court of Tennessee.

Feb. 10, 1950.

Rehearing Denied March 17, 1950.

Wesley Harvell, Memphis, C. C. Crabtree, Memphis, John Heiskell, Memphis, for plaintiffs in error.

R. G. Draper, Memphis, James L. Hutter, Jr., Memphis, for defendants in error.

PREWITT, Justice.

This appeal presents two consolidated cases, one by Mrs. A. L. Hood to recover damages for personal injuries sustained by her when she fell on a sidewalk in the City of Memphis, and one by A. L. Hood, her husband, for loss of services and medical expenses, against the City of Memphis and its Light, Gas and Water Division, charging negligence on the part of defendants' servants in creating a dangerous condition on the sidewalk. The jury returned verdicts in favor of the plaintiffs, which were approved by the trial court. Defendants appealed in error to the Court of Appeals, and that Court affirmed the judgments of the lower court. Certiorari has been granted and argument heard.

Mrs. Hood was injured when she fell as the result of having stepped on a pile of dirt or mud upon a sidewalk in the City of Memphis. The proof shows that the accident happened on the north side of Richmond Street, about 8 o'clock on the morning of October 4, 1946. For several days before the accident, the Light, Gas and Water Division of the City had been running a pipe from the street underneath the sidewalk to a point where an alley extended northward from the street. During the progress of the work, barricades had been maintained in the street near the sidewalk. Dirt from the necessary excavations had been piled in the alley and on the sidewalk as the work progressed. The pipes had been laid in the excavations, the work completed and the barricades removed. It had been raining for several days prior to and on the night before the accident, causing some of the dirt from the excavations to be washed into the alley, which alley crossed and formed a part of the sidewalk. Mrs. Hood and her husband lived on the north side of Richmond Street in the vicinity of the accident. They left their home shortly before 8 o'clock in the morning and walked down the north side of Richmond, intending to catch a bus. It was necessary for them to pass over the alley, the surface of which was slightly lower than the level of the sidewalk. At that time the sidewalk and the alley were covered with a thin coat of mud. The mud was 'caked on top,' with the result that it appeared to be smooth and hard, and it was the same color as the sidewalk. Underneath the apparently hard top coat, the mud was 'mushy.' Mr. and Mrs. Hood stepped from the sidewalk and proceeded across the alley, and as Mrs. Hood stepped onto the sidewalk on the opposite side, her foot slipped and the injury resulted.

Counsel for defendants insist that plaintiffs knew of the work being done in the street by the City and should have reasonably avoided the mud by going outside or around it, and that mud covering an inch and a half or two inches on the street did not constitute actionable negligence.

Mr. King, supervisor of the work for the City, testified that following a heavy rain about 2 o'clock in the afternoon on the day prior to the accident, surplus dirt washed on the street and his crew cleaned it off; that rain fell during the night and the injury to Mrs. Hood occurred about 8 o'clock the next morning before he went back to work.

'The mere slipperiness of a sidewalk, occasioned by ice or snow, not being accumulated so as to constitute an obstruction, is not ordinarily such a defect as will make the city liable for damages occasioned thereby. Where there is snow upon a sidewalk, and it is rendered slippery, there is danger of injury from slipping and falling, even on the best constructed walks. At such times, there is imposed upon foottravellers the necessity of exercising increased care; * * *.' Dillon on Municipal Corporations, 5th Ed., Vol. 4, § 1697, p. 2966.

In City of Memphis v. McCrady, 174 Tenn. 162, 166-167, 124 S.W.2d 248, 249, this Court said: 'The injury to plaintiff resulted from striking her heel against an uneven section of the sidewalk. As she was walking along the pavement in daylight, her heel struck against a rise at the expansion joint which projected two and a half inches about the adjacent block, and the fall upon the pavement injured her. There was nothing unusual about the situation surrounding plaintiff at the time. The projection at the expansion joint extended evenly all the way across the sidewalk. It was a defect that did not obstruct the use, and it could not be foreseen or anticipated that injury would result from use of the sidewalk in the exercise of reasonable care. The undisputed facts present no issue for the jury. The only inference is that it could not be reasonably foreseen or anticipated that injury would result from use of the sidewalk by...