Roseberry v. Lippner

• Decision Date: 18 December 1978
• Citation: 574 S.W.2d 726
• Parties: Terri W. ROSEBERRY, Petitioner, v. Linda LIPPNER, Respondent. 574 S.W.2d 726
• Court: Tennessee Supreme Court

Page 726

574 S.W.2d 726

Terri W. ROSEBERRY, Petitioner, v. Linda LIPPNER, Respondent.

574 S.W.2d 726

Supreme Court of Tennessee.

Dec. 18, 1978.

Charles B. Lewis, Morton, Lewis, King & Krieg, Knoxville, for petitioner.

John D. Lockridge, Ambrose, Wilson, Lockridge & Grimm, Knoxville, for respondent.

OPINION

FONES, Justice.

This is an action by a guest passenger against her host driver for personal injuries sustained in an automobile accident. The jury returned a verdict for defendant which was approved by the trial judge. The Court of Appeals reversed and remanded for a new trial, sustaining two of plaintiff's assignments of error complaining of the jury instructions. That Court held that the last clear chance doctrine, as charged, was erroneous and confusing and that the law of contributory negligence was erroneously charged. We granted certiorari because of our disagreement with the intermediate court on both issues.

Plaintiff sued her host, Terri W. Roseberry, Carol Ray, driver of the other vehicle involved, and James Glenn Ray. Prior to trial plaintiff dismissed her action against Carol and James Ray. Neither plaintiff nor defendant Roseberry had any recollection of how the collision occurred because of amnesia sustained in the accident. The only witnesses on the issue of liability were Carol Ray, and Arnold Honey. A Tennessee Highway Patrolman testified, but his investigation did not disclose anything of significance.

Plaintiff's theory was that although Mrs. Ray was negligent in pulling away from the stop sign, that her host, defendant Roseberry, should have observed Mrs. Ray's entry into the intersection, slowed, stopped or otherwise avoided the accident. In short, that if defendant had been keeping a proper look-out ahead, there was time to bring her vehicle under control and avoid the accident. Plaintiff insisted that the doctrine of last clear chance applied.

Defendant's theory was that Mrs. Ray entered the intersection from the stop street directly in front of her vehicle and when it was in such close proximity to the intersection that a sudden emergency was created; that Mrs. Ray's negligence was the sole proximate cause of the accident and that the doctrine of last clear chance had no application.

The accident occurred between 6:30 and 7:00 a. m. at the "T" intersection of Alcoa and John Sevier Highways in Knox County. Alcoa Highway has two northbound lanes and two southbound lanes separated by a thirty-foot median strip and John Sevier Highway has one lane each for eastbound and westbound traffic. A body of water runs along the west side of Alcoa Highway, and John Sevier Highway intersects on the east side. A stop sign controls westbound traffic on John Sevier Highway.

Plaintiff and defendant were proceeding north on Alcoa Highway in defendant's Volkswagen, and Mrs. Ray was driving a Jeep west on John Sevier Highway, intending to turn left into Alcoa Highway and continue southward toward Maryville. Mrs. Ray testified that she stopped at the intersection near the eastern edge of the right-hand lane for northbound traffic on Alcoa Highway, and waited for the northbound cars to clear; that there was a break in the traffic and although looking south she could see a Volkswagen in the passing lane and a truck in the lane nearest her, she "felt that she had quite a bit of time to get across." Mrs. Ray entered Alcoa Highway in low gear and reached the passing lane when the front of the Volkswagen struck the left side of her Jeep. She declined to estimate distances and time intervals but did mark on a photograph the approximate position of the Volkswagen when she saw it immediately prior to pulling out into the intersection. That mark bears a relative proximity to an advertising sign located some distance east of Alcoa Highway, that cannot be accurately determined from the photograph. There was testimony that the sign was located 720-feet from the intersection.

Mr. Honey testified by deposition, taken in Texas, that the Volkswagen followed him for a long time before the accident but had passed him 300 or more feet before reaching the intersection and was 60 to 80-feet ahead of his truck when the accident occurred. However, another version can be pieced together from his total testimony, to wit: that he first noticed the Volkswagen about one mile south of the intersection, that it pulled up even with him and was just forging ahead of his truck at the point of collision, "(t)hey went around me when they had the accident." He testified that he saw the Jeep stopped at the John Sevier intersection when he was 300-feet away. At one point he said the Jeep started across the intersection when he was 300-feet away but later said that he was half or less than half that distance. Mr. Honey was asked on direct examination what action he took at that time and replied that he reduced his speed and applied his brakes to slow down. But, on cross examination he said he did not believe he would have collided with the Jeep even if he had not applied his brakes. He testified that he was driving 45 m. p. h. and the speed limit on Aloca Highway was 55 m. p. h. There was no evidence that defendant was driving in excess of the speed limit. Mr. Honey testified that he saw the brake lights of the Volkswagen come on "just immediately before the impact." No skid marks were found at the scene of the accident.

Defendant assigns as error the denial of her motion for a directed verdict by the trial judge and the Court of Appeals. We will not belabor that close question, as we reach the same result, assuming that the plaintiff was entitled to a submission of the issues to the jury.

The last clear chance doctrine is based upon the theory that a plaintiff should be allowed to recover where his initial negligence has created the risk of accident and resulting injury and defendant has the last reasonable opportunity to avoid the accident and fails to do so. ¹ See Street v. Calvert, 541 S.W.2d 576 (Tenn.1976). It is an arbitrary exception to the rule barring recovery for proximate contributory negligence, however slight. See Vaughn v. City of Alcoa, 194 Tenn. 449, 251 S.W.2d 304 (1952). It...