Martin v. City of Kingsport
| Decision Date | 13 August 1965 |
| Citation | 405 S.W.2d 780,56 Tenn.App. 250 |
| Parties | Kenneth MARTIN, B.N.F. v. CITY OF KINGSPORT. Roy MARTIN v. CITY OF KINGSPORT. |
| Court | Tennessee Court of Appeals |
M. Lacy West, Kingsport, for plaintiffs in error.
W. E. Weber, Kingsport, for defendant in error.
Kenneth Martin, a minor suing by next friend, brought this action against City of Kingsport to recover for personal injuries sustained while riding his motor bike on Miller Street in Kingsport. Roy Martin, his father, in a separate action sued to recover for loss of services and medical expenses and the two cases were tried together.
At the conclusion of all the evidence the trial judge overruled the City's motion for a directed verdict and the jury returned a verdict for $5,000.00 in favor of the minor plaintiff and a verdict for $2,500.00 in favor of the father.
City of Kingsport then moved for a new trial on the ground the Court erred in overruling its motion for a directed verdict, first, because notice was never given as required by T.C.A. 6--1003 and, secondly, because there was no evidence of negligence on the part of the City in maintenance of Miller Street. Both of these grounds of the motion were sustained and the suits dismissed. Plaintiffs have appealed. Since the suit by Roy Martin, the father, is a derivative action reference to his suit will be omitted.
Since the City itself created the defect, if one existed, it was not necessary to give notice of the accident under T.C.A. 6--1003, and the assignment directed to this ruling must be sustained. Hood v. Allen, 190 Tenn. 56, 227 S.W.2d 534, 16 A.L.R.2d 1286 and cases cited.
Just prior to the accident, plaintiff had attended a boy scout meeting at Bethel Church. He left the Church after dark on his motor bike and passed over the church parking lot. His lights were burning. After stopping at the edge of the street, he moved forward at a speed of 5 or 10 miles per hour, making at the same time a turn to his left. This made it necessary that he lean his motor bike to the left. According to his testimony, as he made the turn and was in the act of 'straightening up' he saw a place in the pavement which had been scraped off by the City's grader but that it was too late to stop. His motor bike slid into the ditch, throwing him upon the pavement and causing serious and permanent injuries.
In reviewing the propriety of directing a verdict our functon is not that of ascertaining where the weight of the proof lies but only to determine whether, taking the strongest legitimate view of the evidence and every reasonable inference therefrom, there is credible, material evidence to support a verdict. D. M. Rose & Co. v. Snyder, 185 Tenn. 409, 206 S.W.2d 897 and cases there cited; City of Chattanooga v. Ballew, 49 Tenn.App. 310, 354 S.W.2d 806; Browning v. St. James Hotel Co., 49 Tenn.App. 396, 355 S.W.2d 462; McFerrin v. Crescent Amusement Co., 51 Tenn.App. 13, 364 S.W.2d 102.
In the light of these holdings, we pass to a consideration of the proof as to the extent and cause of the alleged defect in the street.
The accident occurred October 15, 1963. Miller Street was black topped when the area was taken into the City of Kingsport several years prior to the accident. The width of the paved surface ranged from 16 4 15 8 . There are no curbs. At the accident point the shoulder was at least 12 wide and beyond that was an open drainage ditch apparently 12 to 15 in depth.
The accident occurred on the east side near where the Ferguson driveway enters the street. To provide passage over the ditch from the Ferguson driveway a tile had been laid and covered over.
Pursuant to a work order issued by the City, in September, 1963, a city grader was assigned the duty of cleaning out the ditches on both sides of Miller Street. This was accomplished by placing the right wheels of the grader in the ditch and tilting the blade downward to the bottom of the ditch. As the grader moved forward dirt from the bottom of the ditch was thrown upon the pavement where it could be loaded by a high lift. When the grader reached a driveway, such as that of the Fergusons above described, the operator was forced to take the wheels out of the ditch and raise the blade until the driveway had been passed. He would then again place the right wheels in the ditch and again tilt the blade as before.
It is plaintiff's contention, sustained by credible proof, that when cleaning the ditch about 30 days prior to the accident the operator, after passing the Ferguson driveway, cut back into the ditch too soon and in doing so 'shaved off' some of the black top and shoulder at the point where plaintiff went into the ditch. Plaintiff's father testified that he visited the scene of the accident on the following day. He compared conditions then and in December, 1963, when a picture, filed in the record as Exhibit 9, was taken, pointing out from the picture where plaintiff went into the ditch. The picture shows the black top missing at or near that point. It does not show the ditch as such extending into the paved portion of the street. In his original testimony the witness did not fix the width or length of the missing portion of the pavement. However, near the close of his cross examination, in response to a question from the Court, he testified:
'The Court: How big is that ditch?
'
'The Court: From the road?
The question to be decided is whether reasonable minds might disagree as to whether the defect was such that a reasonably careful and prudent person should anticipate that some one, exercising due care and using the street in the usual and customary way, would probably be injured as a result of leaving it unrepaired or failure to post a warning.
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