Park v. Sinclair Refining Co.

• Decision Date: 29 June 1940
• Parties: PARK v. SINCLAIR REFINING CO. et al.
• Court: Tennessee Court of Appeals

142 S.W.2d 321

24 Tenn.App. 204

PARK v. SINCLAIR REFINING CO. et al.

Court of Appeals of Tennessee, Eastern Section.

June 29, 1940

Petition for Certiorari Denied by Supreme January 1, 1940.

Appeal in Error from Circuit Court, Jefferson County; W. P. Monroe Judge.

Action by Mrs. Pauline Park, administratrix of the estate of J Frank Park, deceased, against the Sinclair Refining Company and others for death of intestate resulting from fall into a grease pit on defendant's premises. To review a judgment for the defendant, plaintiff brings error.

Affirmed.

J. R King, of Morristown, and Phillips & Hale, of Rogersville, for plaintiff in error.

Rankin & Hale, of Jefferson City, Susong, Parvin & Fraker, of Greeneville, and McCanless & Taylor, of Morristown, for defendants in error.

PORTRUM Judge.

This is the last chapter of the career of Mr. J. Frank Park, age sixty-four, a distinguished lawyer of the Jefferson County Bar, and of this Bar, an estimable gentleman, highly esteemed by the public and loved by his friends and associates. He died tragically during an interruption of his work and with his boots on. The court regrets to write the chapter with a disappointing ending.

His widow instituted this suit as his administratrix and sues the defendants for maintaining a nuisance upon the property in which each had an interest by the creation and maintenance of a pitfall endangering the life and limb of invitees upon the premises, and each of the succeeding sublessors and the lessee in possession is named and sued for the same cause. Mr. Park, in the nighttime, fell in the grease pit constructed upon the property which was utilized in the greasing of automobiles. The walls of this grease pit were constructed of concrete and made so as to come to a point within a few inches of the floor adjacent to the crushed rock driveway, which driveway was being used as a walkway by the public and a place for parking cars by patrons using a filling station adjacent, or the shed covering the pit which space within the shed was used for storing, washing, oiling and repairing automobiles. This gravel parking space upon which the public walked, there being no sidewalk, extended from a paved street to the building line upon this lot in Jefferson City, Tennessee, and was a width of 17 feet from the pavement to the building line, and was private property of the defendants, with the exception of the shoulder to the highway, a strip of about 6 feet.

The defendants had constructed and maintained a filling station, in which was located a restaurant, on the east corner of this lot, and to the west of this filling station and under the same roof was this shed, which was used in connection with the filling station. And adjoining this shed on the west was a large brick building with three storerooms. Across the space in front of these buildings was this gravel space, which was a continuation of the paved highway up to the building line and while upon private property it was being used for street purposes and as a parking space for the customers of the respective businesses. The filling station maintained a shed or covered driveway from the front of the building occupied by the station and restaurant upon a portion of this space, in order that cars could be serviced with gasoline from either side of the gasoline pumps located in front of the building, as is the ordinary case. A photograph is in the record which more clearly conveys a description of the premises.

Mr. Park had his law office about 150 feet to the west of this property and the restaurant, and he was in the habit of working at night, and he would quit his work and go down the street to this restaurant for refreshments. He did this quite often and was familiar with the premises.

On the night of May 19, 1937, an automobile driven by a Mr. Bishop, accompanied by a Miss Noe, drove upon this gravel space and parked the car immediately in front of this grease pit, and only a distance of 18 to 20 inches away from the grease pit; and after having so parked another car driven by Mr. McDaniel drove to the rear and left of the Bishop car and parked his car in an oblique position with the line of the street in a method so that the rear of the McDaniel car was to the rear of the Bishop car blocking it in its exit. After some interval of time, Mr. Bishop desired to back out and take Miss Noe to her home, but to do so he had to request Mr. McDaniel to move his car from the rear of the Bishop car and Mr. McDaniel went to his car to comply with the request. Bishop and Miss Noe were in the Bishop car, and Mr. McDaniel was in the act of getting in or within his car when Mr. Bishop and Miss Noe first saw Mr. Park coming across the gravel space towards their car, and while he was in front of the brick building above referred to; he had his hand or his hands in his pockets and was whistling as he came. The lights of these parked cars were not burning. When Mr. Park passed the brick building he was confronted with the two parked automobiles immediately in front of him and he turned to his left and towards the building to pass in front of these cars on his way to the restaurant. When he was in front of the McDaniel car, McDaniel was preparing to start his car, and the front of his car was about 4 or 5 feet from the front of the Bishop car. Bishop turned his head to watch McDaniel and did not see Mr. Park come in front of his car but Miss Noe did; McDaniel started up his car and at the time or about the time Miss Noe saw Mr. Park fall in the pit. She called Mr. Bishop's attention to the fact that someone had fallen in the pit and he got out of the car and went around and looked in the pit but it was dark, and he heard someone whistling in the kitchen and thought that Mr. Park had gone in there whistling, so he came back and drove away. Later he returned to the filling station and Mr. Park had been discovered in the pit and was unconscious; he was removed to a hospital where he died a short time thereafter, never regaining consciousness.

Upon this state of facts the plaintiff bases her cause of action. The allegations of the declaration being material in the determination of the suit, we quote at length, omitting non-essential parts for brevity. The first paragraph of the declaration is a description of the property and is omitted; the second reads:

"On the east end of said premises, at such time, was a building used for filling station and restaurant. Immediately to the west of such building and on said premises, is an open space, under a shed, for the storing, washing, oiling and repairing of automobiles. At this point there was maintained by defendants, jointly or separately, a pit or hole about 10 feet in length, three feet in width, and six feet in depth. On the west side of said room so used for a restaurant, is a door for the use of customers and patrons of said restaurant and filling station to enter said building, and who were invited by the defendants so owning, operating, and maintaining same to enter upon said premises and the rooms aforesaid for the purpose of negotiating sales and purchasing food, drinks, gasoline, etc., and the said defendants owe such invitees the positive duty of maintaining said premises in a reasonably safe condition for their entry thereon.

"On said date aforesaid, said J. Frank Park, the plaintiff's intestate, entered upon said premises for the purpose of going into said room to purchase such commodities from such defendants, pursuant to the invitation so extended to the public generally, and for the mutual benefit of the parties. This was at night. The aforesaid pit or hole was hidden by darkness and shadow. No light was maintained to show it. No top or cover was thereon, and no guard around it. And it constituted a veritable pitfall or trap for those expecting to enter said rooms from the west side by the door aforesaid, being in line with the said door to any person approaching same from the south, and being where said invitees were likely to use in approaching said door. While so entering or attempting to enter said room, under the invitation and for the purpose aforesaid, the said J. Frank Park stepped into said pit or hole, was thrown violently down therein, causing his head and body to strike the sides and parts thereof with great violence, causing great and severe injury to him, from the effects of which, after much pain and anguish, he died, on May 20, 1937. The said intestate was sixty-four years of age; an attorney at law, with large and lucrative practice in Jefferson County and other counties in East Tennessee.

"The defendants maintained said pit or hole with full knowledge of its dangerous condition, other persons having theretofore fallen therein, which was known to the defendants.

"The defendants were guilty of negligence in maintaining said open and unlighted pit, unprotected by guards, and such negligence was the prime and proximate cause of the aforesaid injury and death of the intestate."

At a later term the second count was added to the declaration by an amendment, which reads as follows:

"The allegations of count one with respect to the matters therein contained except as to those which are inconsistent with the matters therein set forth, are reiterated; and it is further averred that the buildings on said premises were at such time open for business and the sale of food, drinks, gas, oil, etc., and the public invited to enter thereon. The space between said building, south of it to the highway, a distance of about 15 to 20 feet was filled in to ground level, then covered with gravel so as to be fit for use by the public in walking and driving thereon, and the public was invited to use same in said manner.

"The aforesaid

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