Sauls v. Evans

• Citation: 635 S.W.2d 377
• Parties: Billy SAULS, Plaintiff-Appellant, v. Patricia A. EVANS, Defendant-Appellee.
• Decision Date: 01 July 1982
• Court: Supreme Court of Tennessee

Page 377

635 S.W.2d 377

Billy SAULS, Plaintiff-Appellant, v. Patricia A. EVANS, Defendant-Appellee.

Supreme Court of Tennessee, at Knoxville.

July 1, 1982.

Daniel J. Goodman and David W. McNabb, Knoxville, for plaintiff-appellant.

Darryl G. Lowe & Rebecca Gillen, Knoxville, for defendant-appellee.

OPINION

BROCK, Justice.

We granted an appeal in this case to review the action of the Court of Appeals, Judge Franks dissenting, which affirmed the action of the trial court in directing a verdict in favor of the defendant-appellee in this action for personal injuries arising out of a collision between the defendant's automobile and the plaintiff who was a pedestrian.

The accident occurred on Alma Avenue, a public street in the city of Knoxville, at about 7:30 a.m. on April 29, 1979. The plaintiff, Billy Sauls, and Daniel Rudd, employees of the Sanitation Department for the city of Knoxville, were accompanying a large yellow garbage truck which was being driven by another employee, Mr. Harold Varner, in a westerly direction along Alma Avenue at the time of the accident. Rudd was picking up garbage cans on the north side of Alma Avenue and the plaintiff was picking up cans from the south side of Alma Avenue and both were carrying the cans to the rear of the garbage truck, dumping them, and then returning the cans to the various residences from which they came. Thus, it was necessary for the plaintiff to cross back and forth over the east bound lane of Alma Avenue as the truck slowly proceeded down the street.

At the same time and place the defendant, accompanied by a younger brother and sister, was driving her Maverick automobile in an easterly direction on Alma Avenue when the left side of her windshield came in contact with the plaintiff who had stepped into the east bound lane of traffic from behind the garbage truck which at the time was equipped with flashing yellow lights. The impact broke the defendant's windshield. Alma Avenue at this location was straight and level but fairly narrow for a two lane street. The weather was clear and visibility was normal.

At the conclusion of the plaintiff's proof which included the defendant's discovery deposition, the defendant moved for a directed verdict upon the ground that the plaintiff was guilty of contributory negligence as a matter of law and that the evidence failed to show negligence upon the part of the defendant. The trial judge directed a verdict in favor of the defendant upon the ground that the evidence established the plaintiff's contributory negligence as a matter of law; this was affirmed by the majority of the Court of Appeals which relied upon Harbor v. Wallace, 31 Tenn.App. 1, 211 S.W.2d 172 (1946) wherein it was said:

" 'If a pedestrian looks for approaching automobiles before attempting to cross a street or highway, he is presumed in law to have seen what he should have seen had his observance been careful and attentive. He cannot justify himself by saying that he looked and did not see the approaching car that injured him, when, if he had looked, he must have seen the car. Unless there is some circumstance or condition to excuse him, his failure to see the car constitutes negligence as a matter of law.' " 211 S.W.2d at 175.

Judge Franks filed a dissenting opinion with which we are in agreement and from which we quote as follows:

"As the majority observes, Harbor et al. v. Wallace, 31 Tenn.App. 1, 211 S.W.2d 172 ...