Inter-City Trucking Co. v. Daniels

• Decision Date: 04 March 1944
• Citation: 178 S.W.2d 756,181 Tenn. 126
• Parties: INTER-CITY TRUCKING CO. v. DANIELS.
• Court: Tennessee Supreme Court

178 S.W.2d 756

181 Tenn. 126

INTER-CITY TRUCKING CO. v. DANIELS.

Supreme Court of Tennessee.

March 4, 1944

Error to Law Court, Shelby County; J. P. M. Hamner, Judge.

Action by Mrs. Doshia Daniels, administratrix of the estate of her deceased husband, against Inter-City Trucking Company for damages for the death of her husband caused by collision between two trucks. The judgment for plaintiff was affirmed by the Court of Appeals and the Supreme Court granted certiorari.

Affirmed.

J. W. Wrape and Charles Hudson, both of Memphis for plaintiff.

John R Coates, of Memphis, for defendant.

CHAMBLISS Justice.

Before daylight on the morning of January 10th, 1942, a large truck of the Inter-City Company, proceeding north from Memphis on Highway 51, stalled about one mile south of Millington. In stood partly on the concrete and partly on the shoulder of the roadway. Something more than an hour and a half later, still before daylight, a smaller truck, driven by Onyx Daniels, crashed into the rear of this standing truck. Daniels was so severely injured that he died later that day in a hospital in Memphis. This action was brought by his widow as administratrix, for the benefit of herself and three minor children, and resulted in a jury verdict of $8,500. A remittitur of $2,500 was accepted and judgment was entered for $6,000, which was affirmed by the Court of Appeals. This Court granted certiorari and argument has been heard.

Material evidence supports the finding concurred in by the lower Courts that the driver of the defendant's truck failed to observe the legislative requirement brought into Michie's Code, 1941 Supplement, as Section 2695(A)(c), that, under conditions here appearing, three lighted flares, or pot torches, shall be placed on the roadway, one in the center of the line of traffic, not less than 40 paces, or approximately 100 feet, from the disabled vehicle in the direction of approaching traffic; one not less than 40 paces, or approximately 100 feet, in the opposite direction, and one at the traffic, or outer side of the truck, approximately 10 feet to the rearward or forward.

The statute provides that these flares (liquid-burning pot torches) 'shall be capable of being seen and distinguished at a distance of 500 feet, under normal atmospheric conditions,' and shall be substantially constructed and capable of burning 'in any air velocities from zero to 40 miles an hour.'

This legislation was doubtless enacted to meet an urgent demand based on experience for the better protection of travelers on the highways. The ordinary lantern lights attached to vehicles of the truck class had been proven inadequate. They vary greatly in visibility, being often dimmed by dust or frost, and range of rays. And, too, it is difficult always to tell whether, these 'tail' lights are moving with a vehicle or stationary. It was the purpose to reduce the menace to lighter traffic on the highways, and to life and limb, by this requirement for the display of stationary signals of such conspicuous character that they could not fail to be seen in ample time to avert collisions, under however bad atmospheric conditions.

The violation of this statute was negligence per se. The driver of an approaching vehicle had a right to assume that the law was being observed and until this glaring and inescapable warning appeared might proceed on the assumption that no standing obstruction of this character was ahead. The failure to place these protective signals, under circumstances which disclose no reasonable excuse for such neglect, would seem to bring this actionable negligence per se within the definition of gross negligence, as charged in the declaration in this case, which precludes reliance upon the defensive plea of contributory negligence, relied on by the defendant.

In Stagner v. Craig, 159 Tenn. 511, 517, 19 S.W.2d 234, 236, since approved and followed in Consolidated Coach Co. v. McCord, 171 Tenn. 253 at page 258, 102 S.W.2d 53, citing other cases, 'gross' negligence was defined as, 'such entire want of care as would raise a presumption of a conscious indifference to consequences.' If one knowingly, consciously, violates a duty imposed upon him to take measures prescribed to protect the lives of others, he is guilty of more than a mere neglect to exercise ordinary care. As was said in the Stagner case, 'This, of course, means more than, on the one hand, want of ordinary care--a common definition of negligence. And yet, it does not cross the border line of studied or deliberate intent to do the specific injury. The mental attitude is one of indifference to injurious consequences, conscious recklessness of the rights of others. Such conduct may well be characterized as wanton. Bouvier defines wanton negligence as: 'A heedless and reckless disregard for another's rights, with the consciousness that the act or omission to act may result in injury to another. Hazle v. [Southern Pac.] Co., C.C., 173 F. 431. [2 Bouv.Law Dict., Rawle's Third Revision, p. 3418].''

We have applied this distinction in passing on criminal liability in traffic cases. The McCord case above mentioned was a violation of the highway traffic statute in driving recklessly through a thickly settled section in wanton disregard of the safety of others. In the recent case of Potter v. State, 174 Tenn. 118, at page 127, 124 S.W.2d 232, 236, a prosecution for manslaughter, distinguishing that conscious negligence which entails criminal liability, and which is of the wanton, or gross class above mentioned, it was said:

'The test appears to be whether or not the driver, violating the highway statute in the particular above considered, does so consciously, or under circumstances which would charge a reasonably prudent person with appreciation of the fact and the anticipation of consequences injurious or fatal to others. For example, one who drives over the crest of a hill on the wrong side of the road, or who drives out from behind a line of congested traffic into the face of near approaching vehicles (as in the recently reported case of Reed v. State, 172 Tenn. 73, 110 S.W.2d 308), can hardly be acquitted of criminal negligence on his plea of inadvertence. The demand for diligence and caution is too imperative under such conditions to be so excused. In this class of cases the defendant must be held to have knowingly violated the law, and must be held to the consequences, whether foreseen or not. Such cases call for application of a rule of unrebuttable presumption of conscious indifference.'

To which, in this connection, it may be added, that in a tort action for damages liability is not limited to injuries resulting which were foreseen by the tortfeasor, but--adopting, in substance, an apt phrase employed by learned English Judges--extends to whatever injuries were within the reasonable range of the risk created by the negligent act, or omission of the defendant.

The defense here relied on by petitioner is narrowed to that of contributory negligence on the part of the deceased driver of the smaller log trailer truck which struck, with fatal results to the driver, the rear of the standing truck of the defendant, and questions arising under this defense, chiefly the admissibility of certain testimony. The actionable negligence of the defendant driver in failing to observe the statutory requirements above noted is conclusively proven by the testimony of all witnesses, except perhaps his own, and was, as we understand, conceded on the argument. Some witnesses say they saw flares either before, or in the rear of the truck before the accident. Some saw none. But we find no witness who testifies that they were at the required distance of 100 feet, or at a...