Lowe v. Irvin
| Citation | 373 S.W.2d 623,52 Tenn.App. 356 |
| Court | Tennessee Court of Appeals |
| Decision Date | 19 March 1963 |
| Parties | James Edward LOWE, By next friend, v. Ernest A. IRVIN. Fred J. LOWE v. Ernest A. IRVIN. |
D. H. Rosier, Jr., D. K. Thomas, Maryville, for plaintiff in error.
Goddard & Gamble, Maryville, for defendant in error.
These cases are here on appeal in error from the Court below by plaintiffs-in-error complaining of the action of the trial court in directing verdicts in favor of defendant-in-error Irvin, at the conclusion of plaintiff's proof. There were two cases, as shown above, wherein James Edward Lowe, a minor, brought suit by next friend for personal injury damages, and the other by his father, Fred J. Lowe, for medical expenses resulting from injuries to his son.
Since there are two cases, consolidated and tried together, growing out of the same alleged careless action in the trial of which, at the conclusion of the evidence of the plaintiffs, the Court directed a verdict in each case favorable to defendant-in-error. Hereafter in this opinion we will let the word 'plaintiff' refer to both the son and the father, and the word 'defendant' to Ernest A. Irvin. Where the father and son are referred to separately, it will be by their respective names or by the words 'Son' or 'Father'.
Declarations in the two cases are identical except as relates to the damages sued for. Each declaration is in two counts, the first count alleging a common law violation and liability to plaintiffs, and the second count alleging liability because of violation of T.C.A. Section 59-858.
The injury resulted from a collision of an automobile driven by the defendant with a bicycle on which James Edward Lowe, a minor 9 years of age, was riding and approaching the Old Niles Ferry Road on which the defendant was traveling, and:
'* * * was then within the clear and open view of the defendant had he been properly observant, but notwithstanding the presence of the plaintiff's son approaching said intersection, the defendant, at an excessive speed under the circumstances, without keeping a proper lookout ahead, without keeping his vehicle under proper control, without seeing what he should and would have seen by the exercise of due care and in wanton disregard of the presence of the plaintiff's son did operate his automobile into the intersection of said roadway and the Old Niles Ferry Road and at a time when the plaintiff's son had operated his bicycle into the intersection, whereupon the automobile and the bicycle collided with great force and violence, throwing the plaintiff's son to the ground and injuring him as hereinafter set out.'
Following that statement the injuries of the young man are fully described, which are rather serious injuries, but from our view of the case and proper disposition of same, needs no further or other reference thereto in this opinion.
In the second count it is charged that the defendant operated his automobile in violation of T.C.A. 'Title 59--Section 858, Reckless Driving: (a) Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.'
This count clearly charges defendant with reckless driving in violation of the quoted section of the Code. The damages laid in the declaration of the minor is $25,000 and in the declaration of his father is $5,000.
There was first filed a plea by the defendant, which is a specific plea, having been filed under the orders of the Court before any general issue plea was filed, and in this plea it is admitted that the collision between the automobile and this bicycle resulted in the injury of the minor defendant. It specifically avers that the accident occurred not at an intersection of ways, but that the plaintiff was riding out of a private driveway into said highway or Old Niles Ferry Road, and that this collision occurred in that sort of an intersection. It denies that defendant had a clear view of traffic approaching from that private drive, but avers that the view from the direction the defendant approached the place where the collision occurred was hidden by a bank and growth along the road and in the field adjacent thereto.
It is admitted that this private drive from which the plaintiff came into the highway was on defendant's left; excessive speed is denied; speed in violation of the law is denied; the charge that defendant was not keeping a lookout ahead is denied, and the charge that he did not have his car under proper control is denied and there are specific allegations that he violated none of these common law negligent averments and then it affirmatively asserts that the minor rode his bicycle out of said private driveway without stopping or looking, and operated said bicycle into the side of defendant's car and that there could be no avoidance of the bicycle hitting the car of the defendant.
As to the second count defendant denies that he violated any part of T.C.A. Section 59-858 or any other statutes of the State of Tennessee, and there is a further plea to both first and second counts to the effect:
in that he rode his bicycle, 'out from a private driveway and into defendant's left side without stopping, without looking or without seeing that he could do so in safety,'
and that the way and manner in which the minor operated his bicycle was the proximate cause of his injury.
The plea then avers that if the Court should hold that the accident occurred at an intersection, defendant pleads the violation of T.C.A. 59-828 subdivision (a) to the effect that a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway, and:
'(b) When two (2) vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.'
Defendant also alleges that the plaintiff's son was guilty of violating T.C.A. Section 59-831 which provides that:
'The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on said highway.'
It also avers that the minor violated T.C.A. Section 59-873 which provides:
'Every person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by chapters 8 and 10 of this title, except as to special regulations in §§ 59-872-59-878 and except as to those provisions of chapters 8 and 10 of this title which by their nature can have no application.'
This case was heard on the briefs before the Judges of the Western Section of the Court of Appeals, sitting at Knoxville, Tennessee, in the Eastern Section on December 4, 1962, taken under advisement, and is now disposed of by this opinion.
The only assignment of error is as follows:
Plaintiffs' proof is very short and somewhat simple, and the substance of which is that the father of the minor was mowing the back lawn at his home, and that something was wrong with the lawnmower and the father instructed the son to go over across this road where the collision occurred, and get a wrench from the garage at Mr. Bryant's home. The boy got on his bicycle and proceeded as he had been directed, the father did not see him any more until after the collision. As the father was there in the back yard, having stopped the lawnmover, and was pulling some weeds, awaiting the return of his son with the wrench, he heard his wife, the mother of this boy holler from the front of the house and at about the same time he heard what he referred to as a 'bump of the car and the bicycle'. He ran around the house to the front and out into this 'Old Niles Ferry Road' where he saw the little boy, the bicycle and the car driven by defendant. The defendant was getting out of the car and he was asked and answered as follows:
'Q--What part of the road was he lying in, Mr. Lowe?
'A--At the edge of the road.
'Q--Was he lying on the edge next to your house or on the edge over toward the Bryant place?
'A--Over toward the Bryant place.
'Q--At the edge of the payement?
'A--Yeah.
'Q--Where was he lying relative to the Bryant driveway?
'A--On this side of it.
'Q--Where was he relative to the driveway; was he in the drive or below it or on this side or where?
'A--On this side of it.
'Q--And at the edge of the pavement, I believe you say, toward the Bryant house?
'A--Yes, sir.'
He then described the injuries of the little boy, how he carried him to the hospital etc. This witness stated he had been living there on that farm for four years and that he was familiar with the condition of the fields across the road from his house. He said he had a conversation with Mr. Irvin at the hospital, and he was asked:
'Q--Did you talk to Mr. Irvin there at the scene or at any other place about this accident?
'A--At the hospital.
'Q--What did he say to you about what had happened there?
'A--He said he didn't see the boy until they had done hit.
'Q--Said he didn't see him until they had done hit; is that right?
'A--That's right.'
He then identified a picture of the road, driveway and the entrance of the driveway into the road in question. He was asked and answered:
'Q--I notice there are two-what is that there on the sides of the drive?
'A--Brick columns.
'Q--And as you look into the picture, the Bryant driveway is on the left and your yard is on the right; is that right?
'A--Yeah.
'Q--Do you remember the day that we made this picture down...
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