Renfro v. Keen

• Decision Date: 10 August 1935
• Citation: 89 S.W.2d 170
• Parties: RENFRO v. KEEN (two cases).
• Court: Tennessee Supreme Court

89 S.W.2d 170

RENFRO v. KEEN (two cases).

Court of Appeals of Tennessee, Middle Section.

August 10, 1935.

Certiorari Denied by Supreme Court January 11, 1936.

Appeal in Error from Circuit Court, Sumner County; J. D. G. Morton, Judge.

Actions by James Franklin Renfro, by next friend, against T. C. Keen, and by J. A. Renfro against T. C. Keen, which were tried together. From adverse judgments, the plaintiffs appeal in error.

Reversed and remanded.

Luther Creasy and Floyd Creasy, both of Nashville, for plaintiffs in error.

J. W. Murrey, of Gallatin, and Laurence B. Finn, of Bowling Green, Ky., for defendants in error.

DE WITT, Judge.

These two actions, one for personal injuries to the minor, James Franklin Renfro, the other for expenses and loss of services incurred by his father, were brought in the circuit court of Sumner county and resulted in dismissal upon verdicts directed by the trial judge upon motions of the defendant, at the close of the evidence offered for the plaintiffs. The suits were tried together. The plaintiffs appealed in error to this court. Their assignments of error may be reduced to the single proposition that the action of the trial judge in directing verdicts for the defendant was erroneous. The motion which was sustained by the trial judge was based upon the following grounds:

First, that there was not sufficient proof of negligence to support the plaintiffs' causes of action.

Second, that the plaintiffs' evidence showed that the plaintiff (James Franklin Renfro), himself, was guilty of negligence that so contributed to the accident and injuries complained of in the plaintiffs' causes of action, that but for same said accident and plaintiff's injuries would not have occurred.

On the night of July 28, 1934, James Franklin Renfro, twenty years of age, was seriously injured while riding as a guest on a commercial truck which was driven off a curve and down an embankment on the Austin Peay highway west of Portland, in Sumner county. The truck was owned by T. C. Keen and was being operated on his business by Walter Dinkins, his employee. There was evidence from which the jury might reasonably have found that the accident occurred from negligent, careless operation of the truck by Dinkins; and if Renfro, while riding as a guest, was not guilty of negligence as a proximate cause of his injuries, the jury could have awarded to him a recovery against Keen under the rule of respondeat superior. But the question here presented is whether or not the evidence shows without dispute, and with only one reasonable deduction therefrom, that the proximate cause of the injuries to Renfro was his failure to take those precautions for his safety that the law required of him under all the circumstances. It is only when the facts are incontrovertible and such that all reasonable men must reach the same conclusion thereon, that a question of negligence or contributory negligence becomes one for the court to determine; it then being solely a question of law. Chattanooga Light & Power Co. v. Hodges, 109 Tenn. 331, 333, 70 S.W. 616, 60 L.R.A. 459, 97 Am.St.Rep. 844; Kansas City M. & B. Railroad v. Williford, 115 Tenn. 108, 88 S.W. 178; Philip Carey Roofing & Mfg. Co. v. Black, 129 Tenn. 30, 164 S.W. 1183, 51 L.R.A.(N.S.) 340.

The material evidence offered for the plaintiffs tended to show the following facts:

James Franklin Renfro was invited by Dinkins, the employee of Keen, to ride with him on the truck from Scottsville, Ky., to Springfield, Tenn., to get some property used in a carnival. They were brothers-in-law, and Renfro had ridden with Dinkins a few times before. They left Scottsville between 6:30 and 7 p.m. on July 28, 1934. Dinkins drove the truck. He drove at the rate of thirty to thirty-five miles an hour to Portland, Tenn. There was a hard rain and a fog and it was dark. They stopped for a while at Portland, and there a driver of another truck accompanying the truck in which they were riding told them that they were late and should speed up. When they left Portland, Dinkins drove the truck in rain, darkness, and fog at the rate of thirty-five to forty miles an hour. The road was wet and slick. Renfro was sitting with the driver on the front seat. He testified that he was looking out, watching the road, and trying to take care of his own safety. About three or four miles west of Portland they went over a little bridge and the truck "bounced around" — the rear end. Renfro said that then he told Dinkins to slow down, but he did not give him any answer and did not slow down. Later they went at the same rate over a hill and lost the tailgate of the truck. Renfro testified that then he told Dinkins to slow down and said, "You'd better hold this thing," to which Dinkins replied, "Hell, boy, you ain't scared, are you?" And Renfro told him that he was scared. Dinkins did not reduce his speed. About one to two miles further, going at the same speed downhill they came to a sharp right-hand curve. Instead of rounding the curve the truck went straight on, off the road, down an embankment, and turned over. Renfro was seriously injured. Renfro testified that Dinkins was going too fast, got to the curve too quickly to make the curve, and ran straight off. The road was of asphalt surface with black top. The accident occurred between 10:30 and 11 o'clock. Renfro had never been over this road before. The road was wet, slippery, winding, and when the truck approached the curve the driver was driving at such a speed that he could not stop within the range of his lights before reaching the curve. Renfro testified that the driver did not hear his first request that he slow down.

In Dedman v. Dedman, 155 Tenn. 241, 291 S.W. 449, 451, after noting that our cases (Stem v. Interurban Ry., 142 Tenn. 494, 221 S.W. 192; Hurt v. R. Co., 140 Tenn. 623, 205 S.W. 437; Knoxville Ry. & Light Co. v. Vangilder, 132 Tenn. 487, 178 S.W. 1117, L.R.A.1916A, 1111; Tennessee Central R. Co. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225) hold that a guest cannot rely upon the care and vigilance of the driver to the extent of relieving himself from the exercise of reasonable precautions for his own safety — the obligation being personal and continuing — it was pointed out that in all the cases thus far decided by our Supreme Court the question of the guest's contributory negligence had been held to be one for the jury. The rule had been established that if an adult, while riding in a car driven by another sees, or ought by due diligence to see, that the driver is not taking proper precautions, it is the duty of the passenger or guest to remonstrate, or give some warning of danger, and a failure to do so is negligence.

In Lea v. Gentry, 167 Tenn. 664, 73 S.W.(2d) 170, 173, these rules are restated, and upon the question of submission to the jury the court said:

"The distinctive principle is this: When the facts show without dispute that the guest was conscious of the peril inherent in the driver's condition or conduct, the court may adjudge contributory negligence as a matter of law; but where either (1) the evidence is in conflict as to the facts of the occurrence, or (2) where reasonable minds may differ as to the effect of the undisputed facts of the situation disclosed on the consciousness or knowledge of the guest of the peril involved in the condition or conduct of the driver, then the question is one for the jury."

Issues as to contributory negligence of guests who gave no warning or remonstrance were held to be for the jury and verdicts excusing such guests for such failures were sustained where the emergencies came suddenly and the view was obstructed [Stem v. Interurban Ry., 142 Tenn. 494, 221 S.W. 192; Johnson, Adm'r & Faucette v. Maury County Trust Co., 15 Tenn.App. 326; Tennessee Cent. Ry. Co. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225; Knoxville Ry. & Light Co. v. Vangilder, 132 Tenn. 487, 178 S.W. 1117, L.R.A.1916A, 1111; Nashville, C. & St. L. Ry. v. White, 158 Tenn. 407, 15 S.W.(2d) 1; Louisville & N. R. Co. v. Tracey, 12 Tenn.App. 167]; where there was a sudden collision not immediately to be anticipated [Claxton v. Claxton, 16 Tenn.App. 399, 64 S.W.(2d) 854; Woodfin v. Insel, 13 Tenn.App. 493]; where the guest was asleep and thus had no actual consciousness of the peril [Lea v. Gentry, 167 Tenn. 664, 73 S.W.(2d) 170]; where the plaintiff, a child, was sitting in her mother's lap and there was a sudden collision [Talley v. Dalton, 10 Tenn.App. 597]; and where the road was straight and smooth, the car was heavy and capable of attaining a high speed without noticeable vibration, in charge of an experienced operator, reputed to be careful, and the peril was sudden [Dedman v. Dedman, supra].

In all of the published decisions upon this subject, the "guest doctrine," relieving the guest from the consequences of the driver's negligence, is qualified by the condition that the danger must not have been obvious or known to the guest, or passenger. The word "obvious"...