McConnell v. Jones

• Decision Date: 09 December 1949
• Citation: 228 S.W.2d 117,33 Tenn.App. 14
• Parties: McCONNELL v. JONES et al. ALLEN v. JONES et al. (two cases). 33 Tenn.App. 14, 228 S.W.2d 117
• Court: Tennessee Court of Appeals

Page 117

228 S.W.2d 117

McCONNELL v. JONES et al.

ALLEN v. JONES et al. (two cases).

33 Tenn.App. 14, 228 S.W.2d 117

Court of Appeals of Tennessee, Middle Section.

Dec. 9, 1949 Certiorari Denied by Supreme Court Feb. 17, 1950.

[33 TENNAPP 16] Ben Kingree Jr. and Edwin T. Nance, Shelbyville, Thurman Thompson and Jones & Wallace, Lewisburg, for plaintiffs in error.

Bass, Berry & Sims, Nashville, McLane & Craig, Lewisburg, for defendants in error.

FELTS, Judge.

John H. Allen and his brother-in-law George A. McConnell were injured, and his thirteen-year-old son Charles Houston Allen was killed, when his automobile crashed into an unlighted truck standing on the highway. The truck was owned by Dr. J. M. Jones and in charge of his employee Tim W. Crane. These suits were brought against Dr. Jones as master and [33 TENNAPP 17] Crane as his servant, charging them with causing the injuries and death by gross and wanton negligence, as set out in four counts in each case.

The cases were tried together and resulted in verdicts and judgments for plaintiffs $350 for McConnell's injuries, $2,150 for injuries to Allen's person and damages to his car, and $5,000 for wrongful death of his son. Dr. Jones and Crane appealed in error and insist that verdicts should have been directed for them upon these grounds: (1) that the uncontradicted evidence showed that the proximate cause of the accident was the negligence of McConnell, driver of the car; and (2) that his proximate contributory negligence barred the first two suits and also the third suit, to the extent of Allen's interest as beneficiary in the recovery sought.

Evidence for plaintiffs was that the accident occurred about 5:15 p. m. November 20, 1947, on State Highway No. 11, Horton Memorial Highway, some five miles north of Lewisburg. Allen, his son, and his brother-in-law McConnell were going in his car, a Plymouth Sedan, from Nashville to Lewisburg, McConnell driving and the little boy sitting on the front seat between them. This highway was a main thoroughfare from Nashville to Lewisburg and points south. A section of it north of Lewisburg had recently been widened, making the paved surface 24 feet wide with dirt shoulders on both sides.

There were a number of material conflicts in the evidence. Evidence for defendants was that at a point some 900 feet north of the place of the accident, and on the right side of the highway as the automobile approached, there was a large sign lighted by a 'smudge pot' warning travelers that the road was under construction and travel was at their own risk. Evidence for plaintiffs was [33 TENNAPP 18] that there was no such sign or light there, no work in progress, the paving had been completed, and the highway fully opened for traffic. It was undisputed that there was considerable traffic at the time and place of the accident.

Another conflict was as to whether it had got dark at the time of the accident, about 5:15 p. m. Dr. Jones and Crane both said it was still daylight--light enough, Crane said, to see automobiles coming without lights half a mile away; and both of them said it did not get dark enough to need lights until some twenty minutes after the accident. But evidence for plaintiffs was that it had been a cloudy, 'murky' day and had got dark some time before the accident--dark enough to need lights when they reached College Grove, about half way from Nashville to Lewisburg; and other passing vehicles had their lights on before and at the time of the accident.

As has been stated, the truck involved was owned by Dr. Jones and registered in his name. He was a veterinarian and was engaged in raising walking horses. He owned two farms which he used in this business, one of them being located on the Horton Highway a few miles north of Lewisburg and the other on beyond or south of Lewisburg. He had had Crane in his employ since March, 1947, and it was part of the duties of Crane's employment to operate this truck on the highways between Dr. Jones' farms in his business of raising horses. The truck was an old Model A Ford with a dump body. It had no light in front or on the rear, and was not even wired for lights. Crane was a sixteen-year-old boy, and had no driver's license.

Evidence for defendants was that Crane had been operating this truck in Dr. Jones' business, hauling among [33 TENNAPP 19] other things sawdust to put in his barns for his horses. He would get the sawdust at a sawmill near Farmington, some two and one-half miles from one of Dr. Jones' farms. At noon on the day of the accident Dr. Jones told Crane to haul some new sawdust and put it in the barn. Crane left with the truck about 1:00 p. m., went to the sawmill, got a load of sawdust and put it in the barn.

Crane testified that he then decided to get another load of sawdust for his own use, to cover a muddy place at the door of the tenant house on Dr. Jones' farm where Crane, his mother, two sisters, and a brother were living. On his way to the sawmill the motor of the truck began 'missing.' He stopped at a store and called Dr. Jones on the telephone at his office. The doctor was not there, his secretary took the call, and later he came in and talked to Crane. Crane told the doctor he had 'had a breakdown.' The doctor asked what was the matter, Crane said he thought he had water in his carburetor. The doctor told him to drain the carburetor, and Crane said he had already done that. Then the doctor told him to leave the truck there, catch a ride home if he could, but if he could not the doctor would come and get him when the doctor got home.

Crane further testified that after waiting a while he got the motor started, drove on to the sawmill, loaded the truck with sawdust, and started back, passing a filling station but not stopping there. As he was driving south along the highway, the motor stopped again. He was unable to start it or to move the truck off the highway. Its right front wheel was off the edge of the pavement but the rear wheels were on the pavement, the truck covering, as some of the witnesses for plaintiffs said, three-fourths of the right or south-bound traffic lane.

[33 TENNAPP 20] It remained there in that position for some twenty or thirty minutes before the accident. There was no light on it, no flare or fuses near it, nor anything to warn travelers that the truck was standing on the highway. Crane did say that though it was still daylight he stood behind the truck to direct traffic around it. But evidence for plaintiffs was that it was dark and he was not there, or at least they did not see him. As the automobile approached, its lights did not reveal the truck, because it was meeting another car, followed by a bus, with headlights shining and obstructing the view of plaintiffs, creating a 'blind spot' so they could not see the truck in time to avoid running into it.

As has been stated, the declaration in each case charged defendants with gross and wanton negligence. The first count was for common law negligence in failing to put out any light or do anything to give warning of the danger from the obstruction of the highway by the truck. The second count charged violation of Code, Sec. 2690, which forbids one to park or leave a vehicle standing on the highway with less than fifteen feet of the pavement unobstructed. The third count was for violation of Code, Sec. 2695, subd. A(b) in operating the truck without any lights on it. The fourth count in each declaration was for failing to carry and display flares, etc., as required by Code, Sec. 2695, subd. C(b).

In testing whether verdicts should have been directed for defendants we are bound to take as true the evidence for plaintiffs, discard all countervailing evidence, and take the strongest legitimate view of the evidence to uphold the verdicts. Lackey v. Metropolitan Life Ins. Co., 30 Tenn.App. 390, 397-398, 206 S.W.2d 806, 810, and cases there cited.

[33 TENNAPP 21] There is dispute as to whether Code, Sec. 2695, subd. C(b), requiring the carrying and the displaying of flares, etc., applies to a truck like that here involved. We need not determine this question. There is also doubt whether the evidence supports the second count based on section 2690 for leaving less than fifteen feet of the pavement unobstructed. But we think the first or common law count and the third count for operating the truck without lights in violation of section 2695, subd. A(b) are amply supported by the evidence; and the verdicts being general will be referred to these counts.

The evidence for plaintiffs warranted a finding that defendants were operating the truck without lights and left it standing in darkness on this busy...