Leach v. Asman

• Decision Date: 05 December 1914
• Citation: 172 S.W. 303,130 Tenn. 510
• Parties: LEACH v. ASMAN.
• Court: Tennessee Supreme Court

172 S.W. 303

130 Tenn. 510

LEACH v. ASMAN.

Supreme Court of Tennessee.

December 5, 1914

Certiorari to Court of Civil Appeals.

Action by Charles W. Asman against Robert S. Leach. From a judgment for plaintiff affirmed by the Court of Civil Appeals defendant petitions for a review on writ of certiorari. Reversed and remanded for a new trial.

Johnson & Cox, of Knoxville, for plaintiff.

A. Y Burrows, of Knoxville, for defendant.

WILLIAMS J.

This action, brought by Asman against Leach, is for personal injuries inflicted by the latter, as the driver of an automobile, in a collision occurring on Gay street, the principal business street of Knoxville. Asman has been a passenger on a street car, and according to his evidence the street car stopped at a street crossing, and while it was at rest, Asman left the car and started to the sidewalk on the side of exit, walking diagonally. He did not see Leach's automobile which followed the street car, and the theory of Asman as plaintiff is that the automobile came suddenly from behind the car, running at a rate of speed that was dangerous and in excess of the ordinance rate, and that no signal or warning was given by Leach before the machine struck Asman who did not see it before it came in contact with him.

The proof introduced by Leach, had it been accepted by the jury, was sufficient to show that the accident was unavoidable.

The jury returned a verdict in favor of Asman, after the trial judge had overruled defendant Leach's motion for peremptory instructions. The Court of Civil Appeals affirmed the judgment rendered on the verdict, and Leach has petitioned for a review by us on the writ of certiorari. The cause was set down for argument and argued at the bar.

The trial judge charged the jury that:

"While ordinary care under existing circumstances, whatever they were, was all that was required of plaintiff, a different rule applied to the defendant, who was charged with the duty of exercising a high degree of care, that is, more than ordinary care, in recognition of the nature of an automobile as an instrumentality for harm to persons upon the streets."

And later, speaking generally (without direct reference to either plaintiff or defendant) of the degree of care, the trial judge said:

"The degree of care must always be commensurate with or in proportion to the degree of existing danger, or hazard."

A request to charge, tendered by defendant, was declined; it being to the effect that if defendant was exercising ordinary care in view of the circumstances at the time, and was not violating the law (ordinances) he should not be held liable.

If the trial judge, in his charge to the jury and in refusing the request, proceeded upon the assumption that an automobile is an inherently dangerous instrumentality, in the handling of which a high degree of care was required to be exercised, that assumption was an erroneous one, as by a most decided weight of authority an automobile is not in the category of instrumentalities which are inherently dangerous in use. Goodman v. Wilson, 129 Tenn. 464, 166 S.W. 752, 51 L. R. A. (N. S.) 1116, and authorities there cited; 2 Rul. Cas. L. 1190.

The charge erroneously imposed on the driver of the automobile a "high degree of care," the true rule being that he was bound to exercise ordinary care, or that degree of care and caution which an ordinarily careful and prudent person would exercise under the same circumstances. As was said in Railroad v. Wade, 127 Tenn. 154, 159, 153 S.W. 1120, 1121 (Ann. Cas. 1914B, 1020):

"Whether ordinary care was exercised under any given or proven state of

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