Knoxville Ry. & Light Co. v. Vangilder

• Decision Date: 28 September 1915
• Parties: KNOXVILLE RY. & LIGHT CO. v. VANGILDER. KNOXVILLE RY. & LIGHT CO. v. VANGILDER ET UX.
• Court: Tennessee Supreme Court

178 S.W. 1117

132 Tenn. 487

KNOXVILLE RY. & LIGHT CO. v. VANGILDER.

KNOXVILLE RY. & LIGHT CO. v. VANGILDER ET UX.

Supreme Court of Tennessee.

September 28, 1915

Certiorari to Court of Civil Appeals.

Two actions, one by W. A. Vangilder and the other by W. A Vangilder and wife, both against the Knoxville Railway & Light Company. Judgments for plaintiffs were affirmed by the Court of Civil Appeals, and defendant brings certiorari. Reversed as to the former action, and affirmed as to the latter.

A. C Grimm, of Knoxville, for plaintiffs.

Shields & Cates and J. Harry Price, all of Knoxville, for defendant.

FANCHER J.

These two suits were tried together in the lower court and in the Court of Civil Appeals, resulting in a verdict and judgment in favor of W. A. Vangilder for the sum of $125, and in favor of himself and wife for $250, against the defendant Knoxville Railway & Light Company.

The cases are now before this court by writ of certiorari, and plaintiff in error seeks to reverse the decree of the Court of Civil Appeals affirming the judgments.

The suit of Vangilder is for personal injuries to himself, and the suit of himself and wife is for personal injuries to his wife. They were out on the road together in an automobile which was being operated by Mr. Vangilder. They had proceeded out on the Kingston pike, which runs from Knoxville, by Lyons View, a distance of about 2 1/2 miles, had turned around, and were returning to the city, when suddenly, and as they were turning a curve in the road, a large automobile with very bright lights came into view, which lights so blinded Mr. Vangilder that he could not see well. He was running upon the right-hand side of the road, and the other automobile was also running upon its right-hand side of the road, as they approached. Just after the two machines had passed each other Mr. Vangilder ran into some barrels, pots, and metal containers left on the edge of the pike by plaintiff in error, resulting in injury to his machine and personal injuries to himself and wife. The turnpike had been coated with a substance called tarvia, which was used as a binder and coating on the macadam. The car track of plaintiff in error was along the side of the pike, there being about 18 inches of space between it and the edge of the coating of tarvia on the pike. Plaintiff in error had some men coating this small strip of roadway between the pike proper and its car track. The tarvia was in barrels. Pots were used to heat the tarvia, and metal containers with wheels were used to convey it from the pots to the space where it was to be applied. These things were on the inside of this curve close up to the railway, and Mr. and Mrs. Vangilder did not observe any light, and in fact they testify that there was no light burning at the place where they ran into the containers, barrels, etc. The Railway & Light Company introduced evidence tending to show that the evening before lights had been placed upon the barrels all along; but if this had been done at this particular point, the lights had evidently gone out, and we must assume in favor of the finding of the trial judge, sitting without the intervention of a jury, that there was negligence in the placing of these containers, etc., and leaving them there on the roadway without being properly lighted.

But it is stated that there was contributory negligence upon the part of Vangilder in running his machine at such speed that he was unable to stop it before running into these containers, etc., which will bar the right of recovery as to both Vangilder and wife. Mr. Vangilder testified that he was only running at the rate of 12 or 14 miles per hour, and he and his wife testified that they were blinded by the extraordinarily bright lights on the other automobile as they were passing it and that the lights from their own machine were directed on account of the curve toward the outside of the road, so they could not see where they were driving. They testified, also, that they did not discover the obstructions until they were within a few feet of them, and that they then were so close to the obstructions that it was impossible for Mr. Vangilder to stop the machine in time to prevent the accident.

It is insisted on behalf of defendants in error that they were excused from the rule established by this court in the case of West Construction Company v. White, 130 Tenn. 520, 172 S.W. 301. In that case it was held that, where a person drives an automobile at night in a dark place so fast that he cannot stop or avoid an obstruction within the distance lighted by his lamps, he is guilty of contributory negligence which will bar his recovery. That case held that this was true, although the defendant was guilty of negligence in leaving an unlighted obstruction in a public thoroughfare.

We see no distinction that can be drawn in this case differentiating it from the case of West Construction Company v. White. The fact that the bright light from the large automobile was shining in the face of Vangilder, and that he was turning a curve where his own light did not shine directly in the way his machine was going around the curve, was a greater reason that he should have stopped or slowed up his machine, so as to avoid running into a place of danger.

We therefore hold that the contributory negligence of Vangilder was such as to defeat his right of recovery, and the case is reversed and suit dismissed so far as his recovery is concerned.

But a more difficult question is presented as to the recovery of Mrs. Vangilder. It is said that, inasmuch as she was not guilty of any contributory negligence, the contributory negligence of her husband cannot be attributed to her.

It has been held in this state that, where a person while riding in the carriage of another by invitation is injured by the negligence of a third party, he may recover against the latter, notwithstanding the negligence of the owner of the carriage in driving his team may have contributed to the injury, where the injured person is without fault and had no authority over the driver. Turnpike Company v. Yates, 108 Tenn. 429, 67 S.W. 69. It is stated that upon the principles announced in that case Mrs. Vangilder should also be excused from any contributory negligence of her husband in driving the automobile, for the reason that she had no control over him and was guilty of no contributory negligence. This presents a proposition which we are not advised has been heretofore directly determined in Tennessee; at least, we do not find any adjudication upon the question in any of our reported cases.

In other states there is a division of opinion. There are a number of decisions which maintain that the contributory negligence of the husband in such case will be attributed to the wife. Among these cases are the following: McFadden v. Santa Ana, etc., R. Co., 87 Cal. 464, 25 P. 681, 11 L. R. A. 252; Peck v. New York, etc., R. Co., 50 Conn. 379; Penn. R. R. Co. v. Goodenough, 55 N. J. Law, 577, 28 A. 3, 22 L. R. A. 460; Gulf, etc., Co. v. Greenlee, 62 Tex. 344; Huntoon v. Trumbull (C. C.) 12 F. 844, 2 McCrary, 314; Morris v. Chicago, M. & St. P. R. Co. (C. C.) 26 F. 22; Yahn v. Ottumwa, 60 Iowa, 429, 15 N.W. 257; Prideaux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 558; Carlisle v. Sheldon, 38 Vt. 440; Joliet v. Seward, 86 Ill. 402, 29 Am. Rep. 35.

In Gulf, etc., Co. v. Greenlee, supra, the court did not discuss the relationship of the parties as husband and wife. In a later Texas case it was held that, although the negligence of the driver in attempting to cross a railway track is not attributable to his wife while riding with him, she will be held to the duty of exercising ordinary care. Galveston, H. & S. A. R. Co. v. Kutac, 72 Tex. 643, 11 S.W. 127.

In Huntoon v. Trumbull, supra, the husband's knowledge of the vicious character of a horse, which ran away, was declared the knowledge of the wife, who was injured while riding with him, but the relationship of husband and wife was not mentioned as an element in the case.

In McFadden v. Santa Ana, etc., R. Co., supra, the holding is based upon the ground that under the law in California the right of damages for injury to the wife while riding with her husband is community property, and the right being joint the contributory negligence of the husband will bar the joint right of action for negligence of a third party.

In Pa. Ry. Company v. Goodenough, supra, the court held that the common-law rule is in force in New Jersey and reinforced by the practice act of that state; the husband has not only the right to sue for the wife for personal injuries, but has a power coupled with an interest in the suit, having the right to release and compromise the case, and it is upon the ground of this joint action and his power over the suit and interest in it that the negligence of the husband will defeat the right of action for injuries to the wife. There is a strong dissenting opinion in the Goodenough Case.

In Carlisle v. Sheldon, Peck v. New York, etc., R. R. Co., Joliet v. Seward, and Yahn v. Ottumwa, supra, it was held that, while the negligence of the husband driving would be imputed to the wife riding with him, it was on the relation of driver and passenger, and not that of husband and wife. In Carlisle v. Sheldon, it was said:

"The wife stands in no different position * * * from that which she would occupy if the driver of the vehicle in which she was riding had been some one employed for that purpose, instead of her husband."

It will be observed that in a number of these cases holding that the wife must answer for the contributory negligence of her husband it was upon the ground that any person riding with another, thereby placing himself or herself...