Nichols v. Smith

• Decision Date: 24 May 1937
• Citation: 111 S.W.2d 911,21 Tenn.App. 478
• Parties: NICHOLS v. SMITH et al.
• Court: Tennessee Court of Appeals

111 S.W.2d 911

21 Tenn.App. 478

NICHOLS v. SMITH et al.

Court of Appeals of Tennessee, Middle Section.

May 24, 1937

Rehearing Denied Aug. 14, 1937.

Certiorari Denied by Supreme Court Dec. 17, 1937.

Appeal in Error from Second Circuit Court, Davidson County; O. W Hughes, Special Judge.

Action by John Nichols, administrator of the estate of L. P. Davis deceased, against E. Gray Smith, and another. From a judgment of dismissal, plaintiff appeals in error.

Affirmed.

L. M Davis and Trabue, Hume & Armistead, all of Nashville, for plaintiff in error.

Leftwich & Denney, of Nashville, for defendant in error.

FAW Presiding Judge.

John Nichols, administrator of the estate of L. P. Davis, deceased, sued E. Gray Smith and Sam Henderson, in the circuit court of Davidson county, on February 20, 1936, for $15,000 as damages for the alleged wrongful death of his intestate.

The case was tried before the honorable O. W. Hughes, special judge, and a jury in the Second circuit court of Davidson county, and the jury found the issues in favor of the plaintiff and assessed his damages at $5,000, and judgment was rendered accordingly by the court.

On the hearing of a motion for a new trial filed by the defendants, the trial judge held that he had erred in overruling a motion on behalf of the defendants for peremptory instructions in their favor (which motion had been made at the close of all the evidence), and he thereupon set aside the verdict of the jury, sustained the defendants' motion for peremptory instructions, and dismissed plaintiff's suit at his cost. Thereupon, the plaintiff moved for a new trial, but his motion was overruled, and, in due season, he prayed, obtained, and perfected an appeal in error to this court, and is here insisting that the trial court erred in setting aside the verdict of the jury and dismissing his suit. Plaintiff insists, through four assignments of error, stating his contention in different aspects, that "there was material evidence presenting an issue of fact for the jury's determination on the question of defendants' liability", and that it was, therefore, error to direct a verdict for the defendants.

For the defendants it is insisted that there is no evidence reasonably tending to prove that the injuries and death of plaintiff's intestate were the proximate result of negligence of the defendants, or either of them.

Plaintiff's declaration contains but one count, and, as a convenient method of stating certain undisputed facts, we here quote certain parts of the declaration supported by undisputed evidence, as follows:

"Plaintiff is a citizen and resident of Nashville, Davidson County, Tennessee, and is and has been for sometime the duly qualified and acting Administrator of the estate of L. P. Davis, deceased. Proper letters of administration were issued to him by the County Court of Davidson County, Tennessee, and said letters of administration will be exhibited to the Court on or before the hearing.

"The defendant, E. Gray Smith, is a citizen and resident of Nashville, Davidson County, Tennessee, and is and for many years prior to the time of the acts hereinafter complained of, engaged in the business of selling automobiles and is and has been doing business under the trade name of E. Gray Smith Motor Company, being the dealer for Packard motor cars. He maintains a garage and sales room on West End Avenue in the City of Nashville and was, on and before the time of the acts hereinafter mentioned, the owner of a certain Packard automobile truck, the same bearing license number for the State of Tennessee for the year 1935 16-790, as registered in the office of the County Court Clerk for Davidson County. Also at the time of the acts complained of, the defendant, E. Gray Smith, had in his employ a colored chauffeur, the co-defendant, Sam Henderson, whose duties in the course of his employment consisted of obeying the instructions and directions of the defendant, E. Gray Smith, and more particularly of driving and operating his various automobiles and trucks, and particularly the truck above mentioned. ***

"Plaintiff's deceased, the said L. P. Davis, was a man sixty-five years of age, in strong and vigorous health and left surviving him four children, viz, W. A. Davis, T. C. Davis, John Davis, and one daughter, Mrs. Elsie Davis Syers, for whose use and benefit this suit is brought."

The remaining averments of plaintiff's declaration are as follows:

"Plaintiff would show to the Court that on or about October 17th, 1935, at about 10:30 p. m., his deceased, L. P. Davis, was negligently, carelessly, recklessly and unlawfully knocked down and run over by the automobile truck above described, being then and there owned by and on the business of the defendant, E. Gray Smith, and being then and there driven and operated by his co-defendant, Sam Henderson, his colored chauffeur while on the business of and acting for and in behalf of the said E. Gray Smith. Said injuries to plaintiff's deceased were so severe and violent in their nature as to result in his death in short while thereafter. ***

"Plaintiff would further show to the Court that on or about October 17, 1935, at approximately 10:30 p. m. his deceased, the said L. P. Davis, was walking in an Easterly direction proceeding from the West toward the East side of Gallatin Avenue, or Gallatin Road at its regular established intersection with Leland Avenue and was at a proper place for pedestrians and was in the exercise of ordinary care for his own safety. At this point the Gallatin Pike extends in a generally North and South direction, is a well-paved thoroughfare, and is straight for a considerable distance both North and South of its intersection with Leland Avenue. The defendant's truck as above described, being operated under the conditions above set out, was proceeding in a Southerly direction on the Gallatin Road or Gallatin Pike. The driver, Sam Henderson, while acting for and in behalf of his co-defendant, the said E. Gray Smith, was driving said truck at a negligent, reckless and unlawful rate of speed under the circumstances, was not keeping a proper lookout ahead, did not have his said truck under control, and while thus driving in such an unlawful manner caused his truck to be driven into and against plaintiff's deceased while he was proceeding across the pike in plain, open and unobstructed view had the defendant been in the exercise of ordinary care.

"Plaintiff's deceased was struck with great force and violence by the front end of said truck and was caused to be picked up by the front end of the truck and hurled against the hood and windshield and then thrown back down to the street. He was horribly mangled, broken, crushed and otherwise injured both externally and internally, was rendered unconscious, and although he was rushed with immediate dispatch to the hospital, he died in a short while thereafter.

"Plaintiff would further show that his deceased's death was directly and proximately caused by the negligence of the defendants as above set out and of each specific act thereof, and the colored chauffeur, Sam Henderson, ran into and struck plaintiff's deceased without ever seeing him, although plaintiff's deceased was clearly visible to him had he been in the exercise of ordinary care and had his truck under control."

It seems to have been conceded throughout the trial that plaintiff's intestate was killed at the time and place stated in the declaration; but it was not admitted that he was killed in the manner and under the circumstances averred in the declaration, or that either of the defendants was guilty of negligence which caused his death.

At the trial below, plaintiff called and examined as his witness defendant E. Gray Smith, who testified that he owned the "Packard automobile truck" described in the declaration; that it was a 1926 model passenger car, which had been converted into a three-fourth ton truck by the attachment of a truck body; that defendant Sam Henderson was employed by witness at the time in question and for about a year prior thereto, and was driving witnesses' truck in the course of such employment at the time it was reported that L. P. Davis was killed; that witness knew nothing of the accident of his own knowledge, but that it was reported to him and he "talked with Sam" (defendant Henderson) "about it" immediately after the accident; that "Sam said the accident happened on the Gallatin Pike at Leland Avenue, just outside of the city limits"; that "he (Sam) was driving over on the right-hand side of the road and going slow"; that "he never did see Mr. Davis until he struck him" and he was "on the hood of his car" and "struck the windshield"; that "he said another car passed him, and it was his idea that as the other car passed it struck this man and threw him upon the hood of this truck he was driving."

Defendant Smith also testified that, after the accident, he examined the truck defendant Henderson was driving on the night Davis was killed and found no evidence of damage to the truck, except that the windshield was broken; that there were some dents in the right fender, but "they were old dents." A photograph of the front of the truck and another of the windshield were filed by this witness (on cross-examination), and they disclose no injuries to the truck other than the broken windshield and the dents on the fender mentioned by the witness Smith.

The "accident" in question was "investigated" by J. M. Murray, a motorcycle officer, and W. H. Thornton, a deputy sheriff, a few minutes after it occurred, and each of these officers testified as a witness for the plaintiff at the trial.

We here quote the material portions of J. M. Murray's testimony as follows:

"Q. ...