Noland v. Freeman
| Decision Date | 05 August 1964 |
| Citation | 385 S.W.2d 310,53 Tenn.App. 644 |
| Parties | Buford NOLAND, Admr., Plaintiff in Error, v. Willis FREEMAN and Everette Watson, Defendants in Error. |
| Court | Tennessee Court of Appeals |
Ogle & Ogle, Sevierville, and Roland Prince, Oak Ridge, for plaintiff in error.
Poore, Cox, Baker & McAuley and James E. Foglesong, Knoxville, for defendant in error, Willie Freeman.
Floyd H. Bowers, Clinton, for defendant in error, Everette Watson.
In this case Buford Noland, Administrator of the estate of Mrs. Noda H. Noland, appeals from a verdict and judgment dismissing his suit under the Wrongful Death Statute.
Mrs. Noland was killed when the Chevrolet pick-up truck in which she was riding as the guest of the defendant, Everette Watson, ran off Henderson Hollow Road in Anderson County and overturned. Willis Freeman who was driving a pick-up truck in the opposite direction was also sued. There was no contact between the two trucks.
The declaration charges both common law and statutory negligence. As to the defendant Freeman, the specific charges are excessive speed, failure to yield one-half the road when the two trucks met and failure to be properly observant of other vehicles and particularly that of defendant Watson. The declaration charges the defendant Watson with failure to be observant of other traffic, failure to use reasonable care to avoid the truck driven by Freeman and driving too close to the shoulder of the road.
Both defendants filed pleas of not guilty and also upon plaintiff's motion special pleas under order of the Court.
The special plea of the defendant Freeman states that he was traveling south and upgrade at a speed of 15 or 20 m. p. h., on a gravelled county road, approaching a curve to his right when he saw the Watson truck about 150 feet away coming from the opposite direction; that there were three ruts in the loose gravel and he was driving with the left wheels in the middle rut: that immediately upon seeing the Watson truck, he turned his truck to the right in order to avoid a collision; that just before he met and passed the Watson truck 'he noticed that the right front wheel of the Watson truck had locked and was sliding in the gravel in a straight line'; that he looked in his rearview mirror and saw the Watson truck continue in a straight line and go over the bank on the outside of the curve.
By his special plea, the defendant Watson denied that he drove too close to the shoulder and denied generally all of the acts of negligence charged against him.
The proof shows that Handerson Hollow Road is approximately 16 feet wide and covered with loose gravel. At the point of the accident it is downgrade going north, the direction in which the Watson truck was going. The Watson truck went over an embankment at or near the outside point of a sharp curve to its left. There is a dispute as to whether there were two or three ruts where the loose gravel had been pushed aside. The right front wheel of the Watson truck slid 40 or 50 feet in the loose gravel and along the right shoulder of the road before it went over the embankment.
Defendant Freeman's testimony conforms to the averments of his special plea above outlined. Defendant Watson testified that there were only two ruts in the loose gravel and that as he approached the curve the wheels of his truck were in these ruts; that he saw the Freeman truck when it came around the curve; that it 'was right on us'; that he immediately applied the brakes and cut to his right but did not have time to get 'straightened up' and continued in a straight line and went over the embankment at or near the point of the curve. His speed was about 20 miles per hour. He testified defendant Freeman was driving fast but he could not say how fast. He had never had any difficulty prior to the accident with his right front wheel locking.
The first insistence made by plaintiff's assignment of errors and brief is that there is no material evidence to support a verdict in favor of either defendant. Coupled with this insistence is the argument that, since defendants do not charge contributory negligence on the part of the deceased, her death must necessarily have resulted from the negligence of one or both defendants. We cannot agree.
If the jury believed the testimony of defendant Watson he was driving at a speed of only 20 miles per hour and turned to his right and applied his brakes as soon as the Freeman truck appeared around the curve. He had never had any difficulty with his right front wheel locking as the defendant Freeman testified. There is no proof that his truck was not roadworthy prior to the accident or that he had any reason to believe it was in any way defective.
It is true, of course, that both defendants were under the duty of taking into account the condition of the road surface, the loose gravel, the fact that they were traveling on a grade and that they were approaching a curve. But it was for the jury to say whether driving under these conditions at a speed of 15 or 20 miles per hour constituted a violation of this duty. The jury could find from the proof that both defendants were upon the lookout and saw the approaching vehicles as soon as they appeared around the curve and that both defendants immediately applied brakes and turned right to avoid a collision which they were successful in doing.
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...a similar state of facts are questions for the jury under a proper charge by the court as to the law to be applied. Noland v. Freeman, 53 Tenn.App. 644, 385 S.W.2d 310 (1964) In the present case, the defendant driver was unquestionably aware of the presence of sledders on the roadway, becau......
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...breached his duty, and that the injuries were a proximate result of the Defendant's negligent breach of duty. Noland v. Freeman, 53 Tenn.App. 644, 385 S.W.2d 310 (1964). Under Tennessee law, even though a motorist has the right of way, he has a duty to use reasonable care to avoid injuring ......
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