Powell v. City of Nashville

• Decision Date: 31 March 1934
• Citation: 69 S.W.2d 894
• Parties: POWELL v. CITY OF NASHVILLE et al.
• Court: Tennessee Supreme Court

69 S.W.2d 894

POWELL v. CITY OF NASHVILLE et al.

Supreme Court of Tennessee.

March 31, 1934.

Error to Circuit Court, Davidson County; A. G. Rutherford, Judge.

Suit by Walter Howard Powell, administrator, against the City of Nashville and others. To review an adverse judgment, plaintiff brings error.

Affirmed.

Price, Schlater & Price, of Nashville, for plaintiff in error.

Jack Keefe, J. Washington Moore, Owen Hughes, Richard Dews, and Tom Kittrell, all of Nashville, for defendants in error.

CHAMBLISS, Justice.

This suit was brought by the administrator to recover for the alleged wrongful death of his wife. She was killed in a collision at the intersection of Second avenue and Monroe streets, when the car in which she was riding as a passenger was struck, as it passed out of Second avenue, without stopping, into Monroe street, by another car running on Monroe. It is alleged that Monroe was a thoroughfare, and that, although the city traffic ordinance required that a stop sign be maintained on Second avenue, at the intersection, to warn drivers entering Monroe from Second avenue, no such sign was there, or had been for a long time, so maintained. The charge is that this omission and failure of the city to observe its ordinance was the proximate cause of the death, and that for this the city is liable in damages. The trial judge sustained a demurrer which set up (1) that the declaration states no cause of action against the city, and (2) that the city is not liable for the negligence of its servants while acting in a governmental capacity.

It is urged that the city is liable (1) because it had failed to observe its own ordinance and use reasonable care to see that its streets were kept and maintained in a reasonably safe condition, and (2) that a nuisance was created by the city in failing to mark Monroe street as a thoroughfare, for which it cannot escape liability by invoking the exemption applicable to municipalities while acting in a governmental capacity.

Quite apparently the draftsman of the declaration had in mind the first of these theories, rather than that of a nuisance. This term appears for the first time in the brief. But, conceding that this point is pleaded, we think that a case of nuisance is not made out. The distinction must be preserved "between negligence, an omission of duty, and a nuisance, or active wrong." Vance v. Shelby County, 152 Tenn. 146, 273 S. W. 557, 558. In his opinion in the recent case of Burnett v. Rudd, 165 Tenn. 238, 54 S.W.(2d) 718 (decided since this suit was brought), Mr. Justice McKinney discusses fully this distinction and reviews our cases and text-book authorities. The principle considered in that case is involved here. Light signals were disregarded by the fire apparatus, resulting in a most unfortunate fatal accident at a cross street intersection. The liability of the city for damages in nuisance cases was recognized, illustrated in our cases cited. City of Chattanooga v. Dowling, 101 Tenn. 342, 47 S....