McCloud v. City of La Follette

• Decision Date: 30 June 1954
• Parties: J. B. McCLOUD et al., Defendants-in-Error, v. CITY OF LA FOLLETTE, Plaintiff-in-Error. 38 Tenn.App. 553, 276 S.W.2d 763
• Court: Tennessee Court of Appeals

Page 763

276 S.W.2d 763

J. B. McCLOUD et al., Defendants-in-Error, v. CITY OF LA FOLLETTE, Plaintiff-in-Error.

38 Tenn.App. 553, 276 S.W.2d 763

Court of Appeals of Tennessee, Eastern Section.

June 30, 1954.

Certiorari Denied Sept. 6, 1954.

[38 TENNAPP 555] Boyce Griffith & David B. Rogers, LaFollette, for plaintiff in error.

Harry B. Brown, Jellico, Jno. M. McCloud, LaFollette, for defendant in error.

HALE, Judge.

This case is improperly styled. Plaintiffs below, J. B. and Jno. M. McCloud, recovered a judgment against the City of LaFollette for $5,000, from which the City prosecutes this appeal.

On March 11th, 1953, a business building owned by the McClouds was damaged by a runaway truck and trailer owned by the City of LaFollette and used for washing streets. This suit followed.

The gist of the negligence alleged is that this truck and trailer was being driven by John Thompson, as agent, servant and employee of the city; that while 'unattended' said truck and trailer broke loose and ran down the street, across the sidewalk and into plaintiffs' building[38 TENNAPP 556] ; that the City 'through its agent, servant and employee, in a grossly careless, wanton, negligent and unlawful manner, permitted or allowed the said water truck and trailer to run into' plaintiffs' building. Then it was alleged that notice of the accident had been given the City, etc. There were two other counts but they were disregarded by the trial judge and will not be noticed further.

Defendant was required to plead specially. There was a general plea of not guilty. Its special plea asserted, 'The truck was owned by the City of LaFollette and at the time of the accident it had authorized no one to use the same except for the purpose of cleaning the streets of the City * * * and, therefore, said truck, at the time of said injury, was being used either without authority or was being used in promoting a governmental function of the City, to wit cleaning streets. The City of LaFollette had no insurance policy on said truck wherein it or any insurer agreed to waive the immunity of law incident to governmental purposes or activities * * *. The defendant denies that said truck negligently was permitted to break loose and run off of the traveled portion of said street, onto the sidewalk and thereupon into a building referred to in the declaration.'

A replication was filed charging that the City had obtained insurance on this truck covering property damage caused by it; that such insurance was in the sum of $5,000, but that the insurer had paid $750 to another claimant thereunder. The declaration was also amended to charge the existence of insurance. Defendant then amended its special plea so as to add: 'On the other hand, it avers that at the times and places alleged in the declaration, said city water tractor-trailer was being operated in a careful, prudent and lawful manner and [38 TENNAPP 557] any damages to said building alleged in all counts were not in any manner the fault of the defendant or any person acting for it.'

Trial by jury resulted in a verdict in favor of plaintiffs for $5,000, but collection thereof was limited to the coverage afforded by the policy of insurance aforesaid.

The assignments of error are directed (1) to the sufficiency of the evidence to carry the case to the jury, and (2) errors in the charge given and in denying certain requests.

This truck and tank trailer was owned by the City and registered in its name, as shown by the certificate of registration filed in evidence. There is some little confusion as to the motor or serial number, but it is clear that this was the truck concerned; it was the only one owned by the City. It was used solely for washing the streets of the City except that on one occasion it had been used for the purpose of watering the field at Caryville Park, for which no charge was made.

It was within the exclusive control and management of John Thompson, a fireman of the City, who also attended to the washing of the streets, for which he received $6 per shift in addition to his salary as a fireman. He had been instructed to wash the streets on the night in question. This work was done late at night to avoid traffic congestion. He was observed around 2:30 a. m. with a load of water. About 15 minutes later he was found on East Central Avenue in a disabled condition, his legs being crushed and other wounds on his head 'which looked like he had been rolled in the gravel.' He died from these wounds about 8:00 a. m. of that same day.

From the point where Mr. Thompson was picked up, there were truck tracks visible which ran down East Central Avenue, which is a 'pretty steep' down grade, [38 TENNAPP 558] and then into the side of the McCloud building, which was two and one-half blocks away. It struck the wall with such force that all of the tractor up to the trailer entered the building through the hole knocked therein. No one was with Mr. Thompson and there were no witnesses to the accident. There is no evidence that the truck collided with anything at the place where Mr. Thompson was found. He was in his usual health and was sober. There is of course evidence that would have authorized the jury to have found that he was in front of this truck and that it ran over him. But there is no evidence as to WHY he was in this position, or WHY he did not set his brakes or cut the wheels of this heavy vehicle against the curb on this down grade.

Would this authorize the jury to find he was negligent? Does this bring into play the doctrine of res ipsa loquitur?

The learned and careful trial judge, after charging upon the duty of the driver of a vehicle to use ordinary care in its operation, charged this:

'Now if the thing or instrumentality causing the injury is shown by a preponderance of the evidence to be under the exclusive control and management of the defendant or its servants or employees while acting within the scope of their employment, and the accident is such as in the ordinary course of things does not happen if those who have the control and management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. This does not mean that the jury must infer negligence but merely warrants an inference of negligence which the jury may or may not draw as its judgment under all the facts and circumstances may dictate. It merely permits the jury to consider and choose [38 TENNAPP 559] the inference of defendant's negligence, if any, in preference to other permissible and reasonable inferences. But if it appears as reasonable, or more reasonable to conclude that plaintiffs' injuries resulted from a cause or causes not alleged by plaintiffs, then the jury could not guess or speculate as to the cause nor find defendant liable if such a situation be found by you to exist.

'If an accident occurred unavoidably, without fault of the defendant or its employees, such as a sudden physical disability unanticipated by the employee or defendant, rendering the operator of a vehicle incapable of control of his vehicle, and there appears no reasonable cause from the proof anticipating such a disability resulting in loss of control, then the operator would not be chargeable with negligence.'

There is an exhaustive and profound treatment of this doctrine in Sullivan v. Crabtree, 36 Tenn.App. 469, 258 S.W.2d 782, 783, where the Middle Section of this Court, speaking through Felts, J., said:

'The classic statement of the doctrine of res ipsa loquitur is this: '(W)here the thing (causing the harm) is shown to be under the management of defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.' Erle, C. J., Scott v. London and St. Katherine Docks Co. (1865), 3 H. & C. 596, 159 Eng. Reprint 665, 667.

'This statement has been accepted in our cases. John Bouchard & Sons Co. v. Keaton, 9 Tenn.App. [38 TENNAPP 560] 467, 479; North Memphis Savings Bank v. Union Bridge & Const. Co., 138 Tenn. 161, 177, 196 S.W. 492; Lewis v. Casenburg, 157 Tenn. 187, 7 S.W.2d 808, 60 A.L.R. 254; Poor Sisters of St. Francis v. Long, 190 Tenn. 434, 230 S.W.2d 659.

'The maxim res ipsa loquitur means that the facts of the occurrence evidence negligence; the circumstances unexplained justify an inference of negligence. In the principle of proof employed, a case of res ipsa loquitur does not differ from an ordinary case of circumstantial evidence. Res ipsa loquitur is not an arbitrary rule but rather 'a common sense appraisal of the probative value of circumstantial evidence.' Boykin v. Chase Bottling Works, 32 Tenn.App. 508, 520-523, 222 S.W.2d 889, 896.

'This maxim does not generally apply to motor vehicle accidents, but it may apply to such an accident where the circumstances causing it were within the driver's control and the accident was such as does not usually occur without negligence. So where a motor vehicle, without apparent cause, runs off the road and causes harm, the normal inference is that the driver was negligent, and res ipsa loquitur is usually held to apply.

'Some of the authorities supporting this view are: Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471; Adams v. LeBow, 236 Mo.App. 899, 160 S.W.2d 826; Masten v. Cousins, 216 Ill.App. 268; Smith v. Kirby, 115 N.J.L. 225, 178 A. 739; Kinary v. Taylor, 243 App.Div. 651, 276 N.Y.S. 688; cf. Galbraith v. Busch, 267 N.Y. 230, 196 N.E. 36; 9 Blashfield, Cyclopedia of Automobile Law (1941 Ed.) sec. 6045; 5 Am.Jur., Automobiles, sec. 608; Annotation, 93 A.L.R. 1101.'

[38 TENNAPP 561] The charge given fully protected the rights of the defendant and was an adequate statement of the law applicable in such cases.

And too the facts of this case, accepted by the jury, brings it squarely...