James v. Metropolitan Government of Nashville and Davidson County
| Decision Date | 25 February 1966 |
| Citation | 55 Tenn.App. 622,404 S.W.2d 249 |
| Parties | John Vernon JAMES, Plaintiff-in-Error, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee, Defendant-in-Error. |
| Court | Tennessee Court of Appeals |
George E. Barrett, Elizabeth R. Post, Nashville, for plaintiff in error.
Stephenson, Lackey & Holman, Nashville, for defendant in error.
This is a suit to recover for personal injuries received by plaintiff when he slipped on ice and snow on a sidewalk and fell into a water meter box on Fatherland Street in Nashville. Among other things, the declaration alleges as follows:
The case was tried in the First Circuit Court of Davidson County with a jury and, at the close of plaintiff's evidence, defendant moved the Court for peremptory instructions in its favor which motion was overruled. However, at this point the defendant rested without putting on any proof, and renewed its motion which the Court then granted instructing the jury to return a verdict in favor of the defendant.
The record indicates that the Trial Judge based his action on two grounds: (1) there was no evidence to support a verdict in favor of plaintiff, and (2) that the proof showed that the plaintiff was guilty of contributory negligence which barred his recovery.
It appears that the Court expressly refused to rule on a third ground of the motion, to wit, that the statutory notice given defendant was defective. However, the judgment as drawn seems to include this as one of the grounds.
Plaintiff appealed in error and has assigned certain errors all of which go to the alleged erroneous action of the Trial Judge in directing a verdict for the defendant.
It was stipulated that the house at 800 Fatherland Street was torn down in 1958 and that the meter was removed from the box located in the sidewalk in front of this house in January 1959 leaving the empty meter box there.
Plaintiff testified that he was 76 years old; was living in retirement at 820 Fatherland Street; that he frequently walked down the street to a grocery at 7th and Fatherland; that his most recent trip along this sidewalk prior to this accident was about three days before; that on February 26, 1963 he was proceeding along the sidewalk toward the grocery; the sum was shining but there was snow and ice on the sidewalk and, as he neared the meter box in question, his foot slipped on the snow and ice and went into the meter box and the heavy metal top to the box fell in on his foot severely injuring him.
On cross-examination there was some confusion in plaintiff's testimony as to whether the meter box had been left open without a top some time previously, and that he had noticed this fact. This seems to have been the impression he left in his discovery deposition taken about a year before the trial, but, when asked about this on cross-examination at the trial, he stated that he didn't remember making the statement that the meter box was left open without a top because it did have a top on it at the time he fell and was injured, and, furthermore, that it was covered with ice and snow. It seems clear from his testimony that he didn't step on the meter box top but slipped on the ice and his foot went into the hole. For example, he testified:
'A. It was covered with ice. My foot broke the ice when it slipped up to it.
Q. The hole was covered with ice?
A. Yeah, ice and snow.'
At another point he testified:
'A. I don't remember mentioning that there wasn't any top on it.
Q. I thought you said--I guess I misunderstood you, I thought you said it didn't have any top on it at all.
A. No, I don't think I would have meant it that way, because there was a top on it, and I can't tell how long it had been on it, but it was--it was on it when my foot slipped in it.
Q. I see.'
Mr. Herschel L. Carter, testified for plaintiff and recounted the incident when plaintiff was injured;
'Q. Would you describe to the Court what you saw when you got to the scene?
A. Well, when I got up there, the water meter, there was a cover on it, and his foot had slipped under there, and the southeast corner, this side of the brick was gone, and there was two bricks on this side was slipped down in the hole, and the cover was laying down on his left ankle or his foot.
Q. Now where were these bricks? You say there were bricks laying in the hole and where had they come from?
A. Well, it looked like they came from the side, from where the cover was resting on.'
Mrs. Belva Hooper who had lived at 812 Fatherland Street since 1949, when asked if she had had occasion to notice the water meter box at 800 Fatherland Street, answered:
'A. Yes, ma'am, it's been in a bad condition--I've noticed it since '59 and '60, that it was--looked like it was worn and sunk in, and the lid was bad. If you just step on it a little bit, why you know you would just go on down in it.
Q. Did you walk past it yourself?
A. Yes, ma'am, I would always go around it, because it looked like it was just ready to fall in, and specially when the snow was on the ground, why I'd always walk out in the street. Of course I know Mr. James couldn't do that, because he was older.'
On cross-examination she stated:
'Well, I stepped on it and it seemed loose, and from that I always walked out in the street.'
She was further asked if the hole had always had a top on it and she stated:
'Well, it had a top, but the top was bad, it was loose, looked like it was just laid up there, didn't look like it was fastened on, just laid up there.'
A leading case in Tennessee dealing with the liability of a municipality for injuries to a pedestrian...
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