Jackson v. City of Nashville

• Decision Date: 01 September 1932
• Citation: 68 S.W.2d 137
• Parties: JACKSON v. CITY OF NASHVILLE.
• Court: Tennessee Supreme Court

68 S.W.2d 137

JACKSON v. CITY OF NASHVILLE.

Court of Appeals of Tennessee, Middle Section.

September 1, 1932.

Certiorari Granted by Supreme Court, and Judgment of Court of Appeals Affirmed April 8, 1933.

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

Action by Mrs. Robert Jackson against the City of Nashville. From an adverse judgment, plaintiff appeals in error.

Reversed, and remanded for new trial.

J. B. Daniel, of Nashville, for plaintiff in error Mrs. Jackson.

J. Washington Moore, Jack Keefe, Thos. G. Kittrell, Richard P. Dews, and O. W. Hughes, all of Nashville, for defendant in error City of Nashville.

CROWNOVER, Judge.

This was an action for damages for personal injuries received while walking on the streets of Nashville, caused by stepping into a hole or depression in the street.

The declaration averred the existence of a deep and dangerous hole in the street, the negligence of the defendant corporation in permitting the same to remain for a long time, and that plaintiff received injuries as a result of a fall caused by stepping in said hole.

The defendant pleaded not guilty. The case was tried by the judge and a jury. At the close of plaintiff's proof and again at the conclusion of all the evidence the defendant moved the court for a directed verdict, which motions were overruled. The jury was unable to agree upon a verdict and so reported.

Thereupon the city of Nashville renewed its motion for a directed verdict, on three grounds:

(1) There was no evidence of a defect in the street, and the city was guilty of no negligence.

(2) There was no evidence that the city had notice of the defect.

(3) The plaintiff was guilty of contributory negligence.

The motion was overruled, and the jury was discharged.

Defendant filed a motion for a new trial and asked for a directed verdict in its favor and the entering of a judgment in its favor dismissing plaintiff's suit, on the following grounds:

(1) The evidence is against the plaintiff and in favor of the defendant.

(2) The court erred in overruling and not sustaining the motions for peremptory instructions, respectively, in each of the instances above mentioned.

(3) The court erred in refusing to permit the defendant to introduce as evidence the original hospital chart of plaintiff's hospital case.

The court sustained defendant's motion for peremptory instructions and dismissed the case, holding that the defect in the street was not an actionable defect for which the city could be held liable.

Thereupon plaintiff made a motion for a new trial because of the error of the court in sustaining defendant's motion for peremptory instructions, which motion for a new trial was overruled, and plaintiff appealed in error to this court and has assigned nine errors, which, when summarized, raise only one proposition, that the court erred in directing a verdict, as there was evidence to sustain the plaintiff's case, which should have been submitted to a jury.

On the morning of July 6, 1931, Mrs. Jackson went along Sixty-First street, walking, to collect her rents. On the west side of Sixty-First street, a foot or two before she reached its intersection with the north side of New York avenue, she stepped into a hole or depression in the road which caused her to fall, breaking her left leg, which has resulted in paralysis of that leg, and she received other injuries.

Sixty-First street, in the city of Nashville, between New York avenue and Centennial boulevard, is a water-bound macadam road; that is, the street was constructed of broken stone, crushed, and put on the street and rolled by a steam roller. The street is in a thickly populated suburb of the city, in a manufacturing section, and is much traveled.

There are no sidewalks on that street in that section.

In May, 1931, the city had this street worked on, scarified, and rolled.

The plaintiff contends that the city negligently allowed a dangerous hole, of the depth of about four inches, to remain in a much-traveled street, into which plaintiff stepped and was thereby injured, and that she was not guilty of contributory negligence. And she insists that, as the facts concerning the accident are in dispute and the evidence conflicting, the questions of the city's liability and her contributory negligence should have been submitted to the jury, and the court erred in directing a verdict.

The city's defenses are that the defect in the street was too slight to be made the basis of liability, and she was guilty of contributory negligence.

There was direct conflict between the evidence of the plaintiff and that of defendant city. It was admitted by the city that there was a depression at the northwest corner of the intersection of Sixty-First street and New York avenue, but it was insisted that it was not a dangerous place, not a hole, but a slight wearing away of the road caused by automobiles turning the corner. The superintendent of streets for the city testified that there was no hole, just a little depression, a little sloping place. The assistant street over-seer for the city testified that there was no hole there in July, 1931. The city construction engineer testified that he looked at this street in October, 1931, and saw no hole.

On the other hand, the testimony of the plaintiff is as follows: Mrs. Robert Jackson testified that the hole was four inches deep; that there was an abrupt break in the street, and she stepped on it and it threw her into the hole, which was four or five inches deep. S. M. McMurray, a civil engineer, said that he examined this place on December 23, 1931, and there was a depression beginning at nothing and tapering off to two and one-half inches deep on down to four and one-third inches deep. J. M. Marlin, who saw Mrs. Jackson fall and assisted her, testified that he examined the hole the next day and it was four inches deep. S. G. Tarkington, who was familiar with Sixty-First street, testified that this hole was six or seven inches deep in July, 1931. Mrs. Cordelia Sanders, daughter of Mrs. Jackson, said that about eight weeks after the accident she went and looked at the hole in the street in which her mother fell and it was about four inches deep; that there was a sudden break off, four or five inches deep. Jesse Haskins said: "I wouldn't imagine it to be very big; I wouldn't say exactly how big it was, but it wasn't such a big hole; an ordinary hole."

From the foregoing review of the testimony it is seen that there is a conflict in the evidence of the plaintiff and the defendant.

"In considering defendant's motion for peremptory instructions, that view of the evidence most favorable to plaintiff's case must be taken by the court, and, if there is any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied." Mayor and City Council of Nashville v. Reese, 138 Tenn. 471, 197 S. W. 492, L. R. A. 1918B, 349.

"The trial judge should take the most favorable view of the evidence supporting the rights asserted by the party against whom the motion is made, and discard all countervailing evidence. Walton v. Burchel, 121 Tenn. 715, 121 S. W. 391, 130 Am. St. Rep. 788; Railroad v. Williford, 115 Tenn. 108, 88 S. W. 178; Knoxville Traction Co. v. Brown, 115 Tenn. 323, 89 S. W. 319; Kinney v. Railroad, 116 Tenn. 450, 92 S. W. 1116; Norman v. Railroad, 119 Tenn. 401, 104 S. W. 1088; Tennessee Cent. Railroad v. Morgan, 132 Tenn. 1, 175 S. W. 1148; Mayor & City Council v. Reese, 138 Tenn. 471, 197 S. W. 492, L. R. A. 1918B, 349; Johnston v. Ry. Co., 146 Tenn. 135, 240 S. W. 429." Wildman Mfg. Co. v. Davenport Hosiery Mills, 147 Tenn. 551, 556, 249 S. W. 984, 985.

"It has been established by repeated decisions of this court that, upon a motion for peremptory instructions, the entire evidence must be looked to, and that it must be given the construction most favorable to the adversary party, and all reasonable inferences allowed in his favor, and that, if there is then seen to be a dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion should be denied. Kinney v. Railroad Co., 116 Tenn. 451, 92 S. W. 1116; Mayor, etc., v. Reese, 138 Tenn. 479, 197 S. W. 492, L. R. A. 1918B, 349; Western Union Tel. Co. v. Lamb, 140 Tenn. 111, 203 S. W. 752." Johnston v. C., N. O. & T. P. Ry. Co., 146 Tenn. 135, 149, 240 S. W. 429, 433.

"The right of a party to have the jury pass upon the question of liability becomes absolute where the facts are in dispute and the evidence is conflicting, or when the proof discloses such a state of facts that, in essaying to fix responsibility for the injury or damage, different minds may arrive at different conclusions. The question of the defendant's liability lawfully can be withdrawn from the jury and determined by the court as a question of law, when and only when the facts are undisputable, being stipulated, found by the court or jury, or established by evidence that is free from conflict, and when the inference from the facts is so certain that all reasonable men, in the exercise of a fair and impartial judgment, must agree upon it." 20 R. C. L. 169, 170, 171, § 141; Lovier v. City of Nashville, 1 Tenn. App. 401; Park City v. Owens, 7 Higgins (7 Tenn. Civ. App.) 359.

There is evidence that Mrs. Jackson stepped on a rock, which caused her to fall, but this is denied by her.

The evidence of the plaintiff, Mrs. Jackson, is that she was not guilty of contributory negligence. She had to watch for automobiles, and heard something behind her, turned around to look, and stepped into the hole and fell down. The hole was of the same color as the street.

Three of the city's employees, W. H. Peebles, Phillip...