Purser v. Thompson
| Decision Date | 10 November 1948 |
| Parties | PURSER v. THOMPSON. |
| Court | Tennessee Supreme Court |
Joe V. Willaims, Jr., and Cardinal Woolsey, both of Chattanooga, for plaintiff in error.
Raulston Schoolfield and Raymond Graham, both of Chattanooga, for defendant in error.
W. G. Purser has appealed in error to this court after his motion for a new trial was overruled and judgment rendered upon a jury verdict for $12,000 in favor of Clifford Thompson, Administrator of the estate of his deceased brother, Harold D. Thompson. By the assignments it is insisted there was no evidence to take the case to the jury on the issue of defendant's liability and that, under the undisputed evidence, plaintiff's intestate was guilty of proximate contributory negligence.
At the conclusion of all the evidence defendant's motion for a directed verdict was sustained as to all of the several counts of the declaration except Counts 1, 2 and 4. Count 1, a common law count, charged that, on March 15, 1947, the defendant Purser was driving his automobile southwardly on Lindsay Street in Chattanooga entering Vine Street, a through street running substantially east and west, and carelessly and negligently continued into the intersection where the decedent, a pedestrian, was struck near the middle of Vine Street while in the act of crossing from the south to the north side of that street.
The second Count of the declaration charged a violation of Code Section 2695, subsection B (a) providing:
Count Four of the declaration charged a violation of Code Section 2695, subsection B (b) providing: "The service brakes upon any motor vehicle or combination of vehicles shall be adequate to stop such vehicle or vehicles when traveling twenty (20) miles per hour within a distance of thirty (30) feet when upon dry asphalt or concrete pavement surface free from loose material where the grade does not exceed 1 per cent."
The defendant's automobile, a 1936 model Oldsmobile, was equipped with hydraulic foot brakes and an emergency mechanical hand brake. About two weeks before the accident the brakes, according to defendant's testimony, were not working properly and the car was taken to a garage for repairs and to have the brakes checked. It was returned to defendant about ten days before the accident and according to testimony of the mechanic and that of defendant and his son who operated the car on the day of the accident, the brakes were thereafter in good working order. Following the accident they were found to be in good condition or at least in working order except as hereinafter shown.
It was necessary to go down a very steep grade on Lindsay Street before reaching the intersection. Defendant testified that he placed the car in second gear but that this was not sufficient to hold the car on the steep grade and when he applied or attempted to apply his foot brake he found that it did not work. He was then nearing the intersection and decided to continue into Vine Street rather than turn into cars parked along both sides of Lindsay Street. He made no attempt to use the hand brake which, according to the undisputed proof, was in good working order.
Upon entering Vine Street defendant's car was struck by another car being operated in an easterly direction on Vine Street. The impact of the collision turned defendant's car eastwardly on Vine Street where plaintiff was struck and fatally injured. Defendant's car also collided with another car proceeding westwardly on Vine Street but whether this was before or after the deceased was struck is a controverted question. There is also a dispute as to the location of the deceased when struck. Some of the evidence indicates that he was thirty-five feet east of the intersection, the proof most favorable to the plaintiff being that he was within ten feet of the intersection.
Mr. Burkett, an automobile mechanic introduced as a witness for defendant, testified that he examined the brakes on defendant's car on March 19th, two days after the accident, and that until he removed the master cylinder and examined it he found nothing wrong with the brakes except that the brake adjustment was loose. He testified that it was necessary to remove the master cylinder and "disassemble" it in order to make the examination. His examination revealed "bent corners" on the master cylinder which prevented a proper seating of the valve, the function of which was to maintain a minimum pressure of five pounds. It was the opinion of this...
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Stephens v. Southern Oil Co. of N. C., 246
... ... Kiel, Mo.App., 137 S.W.2d 625; Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715, 211 P.2d 905; Purser v. Thompson, 31 Tenn.App. 619, 219 S.W.2d 211; Eddy v. McAninch, 141 Colo. 223, 347 P.2d 499. Similar conclusions have been announced by the courts ... ...
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Hammonds v. Mansfield
...case it was held that it was for the jury to say whether or not the defendant was guilty of negligence. In the case of Purser v. Thompson, 31 Tenn.App. 619, 219 S.W.2d 211, the defendant, driver of an automobile, entered a busy intersection and found that his hydraulic brakes would not work......
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...court in Cruse v. Taylor, 89 Ga.App. 611, 616, 80 S.E.2d 704, cited with approval the following language contained in Purser v. Thompson, 31 Tenn.App. 619, 219 S.W.2d 211: 'We think when it appeared from the proof that defendant's brakes were inadequate to control the movements of the car a......
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...working order.' Lochmoeller v. Kiel, 137 S.W.2d 625; Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715, 211 P.2d 905; Purser v. Thompson, 31 Tenn.App. 619, 219 S.W.2d 211; Eddy v. McAninch, 141 Colo. 223, 347 P.2d 499. Similar conclusions have been announced by the courts with respect to oth......