McParland v. Pruitt

• Decision Date: 01 July 1955
• Citation: 39 Tenn.App. 399,284 S.W.2d 299
• Parties: Frances McPARLAND et al. v. Oscar PRUITT. 39 Tenn.App. 399, 284 S.W.2d 299
• Court: Tennessee Court of Appeals

Page 299

284 S.W.2d 299

Frances McPARLAND et al. v. Oscar PRUITT.

39 Tenn.App. 399, 284 S.W.2d 299

Court of Appeals of Tennessee, Middle Section.

July 1, 1955.

Certiorari Denied by Supreme Court Dec. 9, 1955.

[39 TENNAPP 402] Goodpasture, Carpenter & Dale, Nashville, and Earl Beasley, Franklin, for Frances McParland and others.

Courtney, Covington & Courtney, Franklin, for Oscar Pruitt.

FELTS, Judge.

This action was brought by Oscar Pruitt to recover for injuries sustained in being run down by an automobile. The car was being driven by defendant Valeria McParland and owned by her sister, defendant Frances McParland, who was on the front seat with her. He sued the owner as master and the driver as servant, and alleged that they had struck him down in the highway by gross and wanton negligence in a hit-run accident.

There was a verdict and judgment in favor of plaintiff against defendants for $25,000. They appealed in error and have assigned errors. They assert that the Trial Judge erred in overruling their motion for a directed verdict at the close of the evidence for plaintiff, and again at the close of all the evidence, because there was no evidence of any negligence on their part, and because the undisputed evidence showed that the plaintiff was guilty of contributory negligence, as a matter of law, which barred this action.

Further, for Frances McParland, it is urged that there was no evidence that her sister was driving the car as her servant at the time of the accident, but that the uncontradicted evidence was that she had loaned the car to her sister and it was being used by the sister exclusively for the sister's own purpose, and she was merely accompanying her sister on the trip.

Defendants cannot assign error on the overruling of their motion at the close of the evidence for plaintiff. [39 TENNAPP 403] They did not elect to stand on that motion, but proceeded to put on proof of their own, and thereby waived the motion. Tennessee Cent. Railway Co. v. Zearing, 2 Tenn.App. 451, 454; Town of Dickson v. Stephens, 20 Tenn.App. 195, 199, 96 S.W.2d 201; Tallent v. Fox, 24 Tenn.App. 96, 105, 141 S.W.2d 485.

So the issue is whether a verdict should have been directed for defendants on the evidence as it stood at the close of the case. In arguing this question learned counsel differ widely in their views of the evidence, each presenting his own theory of the case, largely involving questions of the weight of the evidence and the credibility of the witnesses.

We must, however, take the view of the evidence most favorable to plaintiff. In testing defendants' motion for a directed verdict, we must look to all the evidence, take the evidence for plaintiff as true, discard all countervailing evidence, indulge all reasonable inferences to uphold the verdict. Smith v. Sloan, 189 Tenn. 368, 376-377, 225 S.W.2d 539, 542, 227 S.W.2d 2.

Evidence for plaintiff was that the accident happened on State Highway No. 11 at the north edge of Nolensville about 1:30 a. m., March 13, 1953. Defendants in the car were coming south, approaching Nolensville from the north. Plaintiff and E. C. Gamble were in an automobile with Robert Kelley. There was some trouble with the motor, the car stopped, and they were trying to push it. It was headed north on its right (the east) side of the highway. Kelley was in the front seat under the steering wheel, and plaintiff and Gamble were behind the car trying to push it.

Seeing the light of the car approaching from the north, they decided to flag it and ask it to push their car. As it approached, plaintiff walked from behind the car [39 TENNAPP 404] and stood in the road a few feet south of it and about two feet east of the white painted center line, and was standing there waving his arm trying to flag the car to stop and aid them.

The car, however, did not stop or check its speed but 'whipped over close and hit him and it just kept on agoing'. It was going 55 or 60 miles an hour, and its left front struck plaintiff, knocked him more than 100 feet, leaving him lying unconcious near the east edge of the pavement; and defendants drove on, leaving the scene without stopping to give their names or to get medical or surgical aid for the injured man.

There was ample evidence of negligence on the part of defendant driver. Nolensville is a thickly settled town and at its north edge there was a highway marker 'Nolensville'. Also there was a caution light suspended over the highway near where the accident occurred--near enough to light the place. Several hundred feet to the north there was a highway sign 'Speed Limit 30'. Still further north several hundred feet was another highway warning sign 'Speed Zone Ahead'. Also the headlights of Kelley's car were burning.

So as the driver approached the scene of the accident she was warned of the speed zone ahead, of the speed limit of 30 miles an hour, of the caution signal light, which was visible three-quarters of a mile; and she could see Kelley's car. She admits herself she saw all these warnings, ignored them all, and was driving 40 miles per hour, as she says, and 55 or 60 miles per hour, according to evidence for plaintiff, through this 30-mile speed zone and this town.

Her version of the accident was that she and her sister stopped at Woodbine, got some sandwiches, and drove on south toward Nolensville. By the time she approached [39 TENNAPP 405] these signs her sister, on the front seat beside her, was asleep. She saw them but drove on at 40 miles per hour. She saw the lights of Kelley's car, and about the time she was within 20 feet of it, its left front door opened across the center line and a man backed out the door in front of her, and she struck the man and the door. She threw her 'brake plumb to the floor', swerved, but could not miss the man or the car door.

She further said that she put on her brakes and came to 'a dead stop' within 30 or 35 feet from the point of impact. But thinking the man might have been 'pushed out of the car' in front of her, or there might be some sort of 'foul play', she drove on, without looking for the man she knew she had struck or stopping to render any aid to him.

By this time her sister had waked up. The driver said 'I am afraid I hit that man' and she was afraid to stop. The sister then told the driver, 'you will have to use your own judgment'. So, the driver stepped on the accelerator and they fled from the scene. But they knew Nolensville was a thickly settled neighborhood, and they drove on through a number of towns where they could have stopped and called an ambulance and doctor, and reported the accident to the officers, including Shelbyville, Tullahoma, and Winchester, the latter being near their home.

So we think there was ample evidence to take the question of the negligence of the driver to the jury, and that the evidence likewise made the question whether plaintiff was guilty of contributory negligence a question for the jury. According to the evidence for plaintiff, which was accredited by the jury, plaintiff was standing a foot or two on his side of the center line, and several feet south or beyond the Kelley car, and while he was standing there waving his arm trying to flag the car, it [39 TENNAPP 406] struck him down and proceeded on without stopping. So the question of his contributory negligence was for the jury. Carey Roofing & Mfg. Co. v. Black, 129 Tenn. 30, 164 S.W. 1183, 51 L.R.A.,N.S., 340; Osborn v. City of Nashville, 182 Tenn. 197, 203, 185 S.W.2d 510.

Comment is made that plaintiff and Kelley had drunk five or six bottles of beer between about 5 p. m., when they got off from work, and about 1:30 the next morning, when the accident happened; and that Gamble, who got in the car with them about midnight, had drunk several bottles of beer. They all quite frankly admitted this drinking. But they seemed able to give the details of the accident, and said they were not drunk. Whether they were or not, was a question of their credibility for the jury, and the jury accredited them. We must take their testimony as true, in considering defendant's motion for a directed verdict. Smith v. Sloan, s...