Mason v. James

• Decision Date: 07 September 1935
• Citation: 89 S.W.2d 910,19 Tenn.App. 479
• Parties: MASON ET AL. v. JAMES. MASON ET AL. v. TRAVIS. MASON ET AL. v. GOINS.
• Court: Tennessee Court of Appeals

89 S.W.2d 910

19 Tenn.App. 479

MASON ET AL. v. JAMES.

MASON ET AL. v. TRAVIS.

MASON ET AL. v. GOINS.

Court of Appeals of Tennessee, Middle Section.

September 7, 1935

Certiorari Denied by Supreme Court Jan. 11, 1936.

Appeal in Error from Circuit Court, Rutherford County; T. L Coleman, Judge.

Actions by Arthur James, Roy Travis, a minor, by next friend, Lee Travis, and by Quint Goins, a minor, by next friend, J. C Goins, against Mrs. Ora Mason and others. Judgment for plaintiffs, and defendants appeal in error.

Judgment affirmed as to plaintiffs James and Goins and affirmed on condition of remittitur as to plaintiff Travis.

Wm Howard Ewing, of Nashville, and Jas. D. Richardson, of Murfreesboro, for plaintiffs in error Mason et al.

C. C. Jackson, of Murfreesboro, for defendants in error.

J. ROY HICKERSON, Special Judge.

Arthur James, Roy Travis, and Quint Goins were plaintiffs in the trial court and Mrs. Ora Mason was defendant. They will be referred to in this opinion in the same way.

This suit was brought by plaintiffs to recover for injuries received in an automobile accident. The accident occurred on March 10, 1934, on the Murfreesboro and Manchester highway about 10 miles out of Murfreesboro. Plaintiffs were traveling towards Murfreesboro. They were riding on the driver's seat of a truck which was loaded with cedar poles or logs. Arthur James was the owner and driver of the truck. Roy Travis and Quint Goins, both of whom were minors, were working for Arthur James at the time of the accident.

The defendant was driving a passenger automobile at the time of the accident. She was going from Murfreesboro towards Chattanooga. The accident occurred on a concrete bridge over Hurricane creek.

The jury found the issues in favor of plaintiffs and assessed the damage of Arthur James at $2,550. This amount was divided into $2,400 for personal injuries and $150 for property damages. Roy Travis was given $1,500 for personal injuries and Quint Goins was given $25 for personal injuries. Judgment was entered on this verdict, and defendant has appealed in error to this court.

By agreement the three cases were tried together below and they come to this court upon one transcript.

The first, second, third, fourth, sixth, seventh, and eighth assignments of error will be disposed of together because they are based upon the facts. There was material evidence to support the verdict of the jury, and these assignments of error will be overruled.

Where there is any material evidence to support the verdict of a jury, the verdict will not be disturbed on appeal. Encyclopedic Digest of Tennessee Reports, vol. 1, Cumulative Supplement, 170, 171.

In her fifth assignment, defendant complains that the verdict of the jury was excessive. We do not agree with this contention. The testimony of all witnesses has been carefully examined. The trial judge heard this testimony and approved the verdict. We think there was no error in his so doing, subject to the modification of the judgment in the case of Roy Travis hereinafter stated in this opinion.

Defendant laid especial emphasis in this assignment on the damage that was awarded because of injuries to the truck. Arthur James testified the reasonable market value of the truck immediately before the accident was $250, and that he sold the remains after the accident for $20 as junk. No attempt was made by defendant to prove otherwise, except by cross-examination. The fact that plaintiff only gave $90 for the truck would not be conclusive as to its value. He might have bought it at a bargain.

The fifth assignment will be overruled.

By the ninth assignment, the defendant questions the action of the court in permitting Arthur James to be recalled and testify that defendant had sent him to Dr. B. W. Rawlings for a physical examination. Defendant contends that this was testimony in chief and should not have been allowed on rebuttal.

The method and order of the introduction of witnesses is a matter within the discretion of the trial court.

In Hudkins v. City of Martin, 7 Tenn.Civ.App. (7 Higgins) 547, 553, which case was affirmed by the Supreme Court, the court said: "The second error assigned is the Court's permitting the witness Hudkins to be recalled for purpose of examination in chief after his examination had been concluded. We have examined the record and find no reversible error in the course of procedure touching the matter in this case. Courts are invested with large measure of discretion in respect of the manner and method of the introduction of testimony, and it is always the desire and purpose of the Court to get at the facts as they really are, and discretion is always rightfully exercised toward accomplishing that end." We do not think the trial court abused that discretion in the case at bar in permitting this testimony to be presented as it was, and this assignment is overruled.

That the testimony of Alex Hughes should have been excluded is the basis of the tenth assignment. Hughes testified that on the morning of the accident he was walking on the Murfreesboro-Manchester highway going south. A car in which two ladies were riding passed him about 1 1/2 miles from the scene of the accident. This car was going south and was traveling about 75 miles an hour. Witness learned about thirty minutes later of the accident.

Defendant complains that this occurrence was too remote. In disposing of this matter, the trial court said: "I think the jury might consider that" (speaking of the speed of the car), and, "The jury will look to that as to whether or not that is the same car." The witness had just stated that he did not know whether it was the same car and did not know what kind of car the ladies were driving.

In An Automobile Accident Suit, by Anderson, p. 419, § 389, the rule is stated: "It is generally held that the admissibility of evidence of speed at other times and places is committed to the sound legal discretion of the trial court and that his exercise thereof will not be reviewed except for abuse resulting in prejudice to the complaining party. Thus it is within the discretion of the court to receive evidence of the speed of an automobile before it reached the place of the occurrence complained of, providing the place where it is sought to establish speed is not too remote. Of course, if the evidence as to speed at another time or place is remote, it may be excluded within the legal discretion of the trial court. Generally, however, evidence of speed at other times and places has been received.

"Not only may the evidence of speed be received when it is shown to have been observed within a reasonable distance, but the same rule applies where the speed is shown within a reasonable time, as a few seconds. It seems, however, that the remoteness of evidence of speed at other times and places goes to the weight to be accorded it rather than to its admissibility. It has also been held that improper evidence of speed is not generally harmful."

The rule is likewise stated in 42 C.J. 1224, § 1025: "On the issue of the speed of a motor vehicle at the time of an accident, evidence is admissible as to its speed immediately before or after the accident. While evidence of the speed of the motor vehicle at a remote time or place is not admissible, unless it is connected with other evidence showing that the same rate of speed was maintained up to the time and place of the accident, the question of remoteness is dependent upon the facts of each case and rests largely in the sound discretion of the trial court."

As we see the case, this evidence was worth very little, if anything. The car about which witness testified was 1 1/2 miles from the scene of the accident, and he did not know it was the same car that was involved in the accident. We do not think that character of evidence would be seriously considered by the jury. This assignment is overruled.

The eleventh, twelfth, and thirteenth assignments of error will now be considered together. In these assignments, the defendant states that the trial court erred in refusing to charge the jury that plaintiff Arthur James should have pulled to the right and stopped his truck when he saw the defendant had lost control of her car, and that the other plaintiffs should have warned Arthur James so to do when they saw defendant had lost control of the car. We think the trial judge fairly charged the law of the case. He expressly charged the jury that, if plaintiffs were guilty of contributory negligence which proximately caused the accident and injuries, they could not recover. It was a question of what an ordinarily prudent man would have done under the circumstances and this was the very question which the jury was called upon to decide. We do not think it was improper for the trial court to refuse, under the circumstances of this case, to designate in his charge certain specific things which plaintiff should do and tell the jury that, unless they did these things, they would not be exercising reasonable care. We find no error in this portion of the charge, and these three assignments are overruled.

The fourteenth assignment of error is based on the refusal of the trial judge to charge the jury that, if any one or all of the plaintiffs were guilty of contributory negligence which proximately contributed to the accident, that plaintiffs could not recover. The trial court charged the jury: "If the plaintiffs should be guilty of an act of negligence that directly and proximately caused or contributed to the accident or injuries, then the plaintiffs could not recover damages."

We see no error in refusing to charge the request covered by assignment No. 14, and this assignment is overruled.

The fifteenth, sixteenth, and...