Oliver v. Union Transfer Co.

• Decision Date: 25 January 1934
• Citation: 71 S.W.2d 478,17 Tenn.App. 694
• Parties: OLIVER v. UNION TRANSFER CO.
• Court: Tennessee Court of Appeals

71 S.W.2d 478

17 Tenn.App. 694

OLIVER v. UNION TRANSFER CO.

Court of Appeals of Tennessee, Middle Section.

January 25, 1934

Certiorari Denied by Supreme Court May 19, 1934.

Appeal in Error from Circuit Court, Davidson County; A. B. Neil Judge.

Action by Tula Oliver against Union Transfer Company. Judgment of dismissal, and plaintiff appeals in error.

Affirmed.

C. H Rutherford, J. W. Rutherford, and C. H. Rutherford, Jr., all of Nashville, for plaintiff in error, Tula Oliver.

Charles P. Hatcher and Bond, Fuqua & Bond, all of Nashville, for defendant in error, Transfer Co.

CROWNOVER Judge.

This was an action for damages for personal injuries received by the plaintiff, Mrs. Oliver, while riding as a passenger for hire in defendant's bus, when it was turned over into a ditch on the side of the highway.

The declaration as amended contained three counts: (1) The driver by negligent and unskillful driving ran the bus off of the road and caused it to turn over. (2) The road was narrow and defective, and dangerous for bus travel, and because of combined negligence of driver and dangerous condition of the road the accident resulted. (3) Defendant's servant negligently ran its bus off of the hard-traveled surface of the road and too near the edge of the shoulder, which caused the bus to be thrown off of the bank and into the ditch, and said driver failed to stop its bus upon a solid part of the roadbed, etc.

There was no averment of negligence on account of fast and reckless driving.

The defendant pleaded not guilty.

The case was tried by the judge and a jury. At the conclusion of the evidence defendant moved the court for a directed verdict in its favor on the ground that there was no material evidence to support a verdict and no negligence shown on the part of defendant. The court sustained the motion and the jury returned a verdict accordingly, and judgment was entered dismissing plaintiff's action.

Motion for a new trial having been overruled, plaintiff appealed in error to this court and has assigned five errors, which raise only two propositions:

(1) There was material evidence that the defendant was guilty of negligence that caused the accident.

(2) The theory of the defendant, that the cave-in of the road caused the accident, was supported by evidence that was contradicted.

The defendant in error, Union Transfer Company, a corporation, is a common carrier of passengers, and in that business operates motorbusses between Pulaski and Nashville, Tenn.

On September 24, 1929, Mrs. Tula Oliver purchased a ticket at Pulaski for Nashville and became a passenger on defendant's bus.

The regular highway between Columbia and Nashville was closed on account of construction, and the state highway department had designated the Carter's Creek road as a detour road which road the bus company was using. This was a narrow country road covered with gravel, with a branch of a small stream at the side of it. It was raining on this date.

At a point about six miles from Columbia, the bus, while passing an approaching automobile, turned over in the ditch.

The pavement at this point was 14 feet wide with a shoulder 2 1/2 or 3 feet wide on the side next to the branch (the side on which the bus turned over) and a shoulder 12 or 18 inches wide on the other side. The bus was 7 feet wide and an automobile 5 feet wide. The pavement of this road at other places was less than 13 feet wide with a shoulder on the branch side of about 18 inches and no shoulder on the other side.

The plaintiff and her witnesses testified that the bus was traveling at the rate of 35 to 40 miles an hour; that an automobile was approaching; that the bus did not check its speed; that as it was passing the automobile the bus suddenly turned over into the ditch. One of plaintiff's witnesses testified that the shoulder did not cave in, but on cross-examination she admitted that the bank broke off. She also said the bus turned over on its side.

Defendant's witnesses testified that the detour road was narrow; that in some places cars could not pass each other; that at this point the road was wide enough for cars to pass, and it was the custom for one car to stop at that place while the approaching car passed, which place was called "the side track"; that there was a fill of loose rocks there. The driver testified that he had stopped at this point before, and on this occasion he saw the automobile coming as he reached this point and had brought the bus almost to a standstill to let the other car pass; that his right wheels were about 2 feet from the edge of the shoulder; and that the bank or shoulder gave way 2 1/2 or 3 feet from the edge and caved in the length of the bus, turning the bus slowly over on its side in the ditch. Other witnesses testified that this was the only place within 300 or 400 yards where cars could pass; that the bus had almost stopped; that the rock fill caved in the length of the bus; that about 2 1/2 feet broke off; that the bus turned slowly over on its side; and that it was lying in the ditch on its side on a line with the caved-in part of the road.

None of the assignments of error are well made, so they must all be overruled.

The defendant's attorney admitted in argument that ordinarily the doctrine of res ipsa loquitur should apply in such cases. In this we think he was correct. Greyhound Lines, Inc., v. Patterson, 14 Tenn.App. 652-657; Illinois Cent. R. Co. v. Kuhn, 107 Tenn. 106, 112, 64 S.W. 202. But he insisted that as plaintiff had averred specific acts of negligence, the doctrine did not apply. This contention is not well made. We think the declaration sufficiently averred general acts of negligence (which were proven), for the application of the doctrine of res ipsa loquitur, although specific acts of negligence were averred and not proven. The doctrine of res ipsa loquitur applies where general negligence is averred, even though specific acts of negligence are averred and not proven. Nashville Interurban Railway Co. v. Gregory, 137 Tenn. 422, 433, 193 S.W. 1053; Greyhound Lines v. Patterson, supra; 45 C.J. 1225-1228, § 786.

AD3-6] The doctrine of "res ipsa loquitur" is a rule of evidence, that is, upon proof of an accident or injuries and the attending circumstances, where the defendant owes the plaintiff a duty to use care, an inference of negligence may be drawn. 45 C.J. 1208. This inference is different from a mere presumption, in that a presumption will only be indulged in the absence of substantive evidence, Frank v Wright, 140 Tenn. 535, 205 S.W. 434; Wright v. Bridges (Tenn.App.) 65 S.W.2d 265; whereas the inference...