Shew v. Bailey

• Decision Date: 14 November 1951
• Parties: SHEW v. BAILEY (three cases).
• Court: Tennessee Court of Appeals

Page 362

260 S.W.2d 362

37 Tenn.App. 40

SHEW v. BAILEY (three cases).

Court of Appeals of Tennessee, Eastern Section.

Nov. 14, 1951.

Simmonds & Bowman, Johnson City, for plaintiffs in error.

Bernard Cantor and Chase & Neel, Johnson City, Tenn., for defendants in error.

ANDERSON, Presiding Judge.

These three cases were tried together. They arose out of the collision between an automobile belonging to Shew and a motorcycle being operated by the minor, Harold Bailey, at or near the northeast corner of the intersection of Oakland Avenue and Watauga Avenue, in Johnson City. The accident occurred at five o'clock p. m. on June 9, 1950.

The first case was instituted by Shew against Harold Bailey. Shew sought to recover compensation for the damage done his automobile. The second suit was instituted by Harold Bailey by his father and next friend, William Howard Bailey. Young Bailey sought to recover from Shew damages for personal injury. The remaining suit was by William Howard Bailey, the father of the minor, to recover from Shew damages for loss of services of the minor and reimbursement of expenses incurred by him in connection with the minor's injuries.

The trial before the judge and a jury resulted in a verdict for the defendant Harold Bailey in the first case. In the second, the jury found for the plaintiff and fixed his damages at $10,375. In the third the verdict was also for the plaintiff and the recovery was fixed at $3,100. Judgments were entered accordingly and Shew appealed in error only from the judgments awarding recoveries against him. Hence, we are not concerned with the result of the suit instituted by Shew for property damage to his car. Since the suit of the minor's father depends altogether upon the suit of his son for personal injuries, we will deal only with the latter, and for convenience of expression refer to the minor as plaintiff and to Shew as defendant.

The first contention is that there is no material evidence to support the verdict of the jury and hence the suit should have been dismissed on the defendant's motion for a directed verdict.

The verdict of the jury in the case brought by Shew against Bailey, considered in the light of the pleadings in that case and the judge's charge, manifestly was a finding that the accident was not the result of concurrent acts of the parties and that Bailey was not guilty of actionable negligence in the operation of the motor vehicle, at a wrongful rate of speed or otherwise.

Without regard to this finding, however, there appears to be no contention in this Court that Bailey was guilty of contributory negligence which barred his action. The only issue seems to be that there was no evidence to support a finding that the defendant Shew was guilty of actionable negligence.

In presenting this question, able counsel for the parties have argued at some length the weight of the evidence and the credibility of the witness. We are not concerned with these propositions. Both were conclusively settled in the plaintiff's favor by the trial judge's action in approving the verdict. We accept as established those facts implicit in the jury's verdict with respect to which there was material evidence of a substantial nature. We decide only whether the facts so found are sufficient in law to fix liability on the defendant.

Watauga Avenue runs east and west and carries a state highway. It is 24 feet wide from curb to curb and is intersected by Oakland Avenue running north and south, which is 39 feet wide from curb to curb. The defendant's automobile was traveling north on Oakland. He drove it into the intersection, intending to cross Watauga Avenue. When he reached a point at or near the northeast corner of the intersection, the motorcycle struck the right side of the car about the center, crushing the right door and caving in the pillar on the right side. At that time the front part of the automobile was north of the north curb line of Watauga Avenue and immediately prior to the impact the motorcycle was so close to the north line of Watauga that it scraped the curb.

The defendant was operating his car across the intersection in first gear. He was traveling five or six miles per hour. Strangely enough, there was no direct evidence of the rate of speed at which the motorcycle was being driven and no question is made with respect thereto. The collision caused Shew's car to veer across Watauga and knock down the post of a stop sign embedded in the concrete on the northwest corner of the intersection.

As said, the motorcycle was being operated by the minor plaintiff who was about seventeen years old at the time. Another young man by the name of Lockner was on the vehicle, sitting behind the plaintiff. Both were rendered unconscious and plaintiff was very seriously injured. Both claimed they could remember nothing about the accident, and this failure of memory is not criticized or questioned by the defendant.

On the southeast corner of the intersection there is located a food store. This store is 31 1/2 feet from Oakland Avenue and 52 1/2 feet from Watauga Avenue. The space between the store and the street lines is utilized as a parking space for customers. As he proceeded north on Oakland Avenue and reached this store, the defendant pulled into this parking space and parked his car in front of the store. He disembarked, and after making some purchases in the store, backed his car into Oakland Avenue and southward on that street far enough to straighten it out and head north toward the intersection.

Twenty-five feet south of the curb line on Watauga there is painted on the pavement in very large letters the word, 'Stop'. The defendant testified that he knew of this sign and knew Watauga Avenue was a 'through' street; that he stopped at the sign before entering the intersection, looked both ways on Watauga; that the only vehicle he saw was a bus coming from his right,--that is, proceeding west on Watauga,--and that the bus was in the act of stopping; that it did stop and opened the door for the discharge of passengers. We never saw the motorcycle at all until after the impact. He estimated the bus to be 150 feet east of the intersection when he started across. Several other eyewitnesses unmistakably show that the motorcycle was in plain view when the defendant reached the intersection. Their estimates of the distance of the motorcycle at that particular time vary from 30 to 150 feet. They also saw the bus, but they agree that it did not stop at all and that the motorcycle had passed the bus when the defendant reached the intersection. Just before the impact the motorcycle veered to the right, apparently in an effort to pass in front of the automobile. It struck the car sideways.

The defendant made three different statements shortly after the accident, which are in conflict with his testimony. The first was made at the scene of the collision when the crowd had gathered. On this occasion he said he saw the motorcycle approaching, but thought he could 'beat them'. Another statement was made at the hospital some 15 minutes later. This time he said, 'I saw the boys and thought I would have time to beat them but I didn't have time to make it'. On the day following the accident, he said he had lost his wife shortly before, and was 'studying about that and just pulled out and didn't look where I was going, unthoughtedly'.

As stated, the store on the southeast corner of the intersection was located 52 1/2 feet south of the south line of Watauga. There can be no question about the fact that after he cleared the building, the defendant's view to the east was unobstructed and the jury could have found, and doubtless did, that as the defendant approached Watauga Avenue, the motorcycle was in plain view. The defendant was chargeable with seeing what, by the exercise of ordinary care, he should have seen, and the jury could have found that he was guilty of actionable negligence in failing to look to his right as he entered the intersection, or that he in fact did see the motorcycle approaching but nevertheless tried to cross in front of it when the exercise of ordinary care required him to allow it to pass before he attempted to cross the street. The evidence made these questions ones for the jury. Cf. Yellow Bus Line v. Brenner, 31 Tenn.App. 209, 225, 213 S.W.2d 626.

The case cited correctly interprets the holding in Maxwell v. Kirkpatrick, 22 Tenn.App. 21, 116 S.W.2d 340, and Duling v. Burnett, 22 Tenn.App. 522, 124 S.W.2d 294. We find nothing in either which militates against the conclusion we have reached that the case was properly submitted to the jury.

In this connection it is proper to note, as we have done before, that distances when considered in connection with moving vehicles, take on a different significance than they appear to have when considered in the abstract. The plaintiff demonstrates this in his brief in an approximately correct calculation which may be used as an illustration. Assuming that as the defendant approached the intersection, the motorcycle was 100 feet away: if the motorcycle was traveling

at 10 miles per hour it was approximately 6 2/3 seconds away;

at 15 miles per hour it was approximately 4 1/2 seconds away;

at 20 miles per hour it was approximately 3 1/3 seconds away;

at 25 miles per hour it was approximately 2 8/9 seconds away;

at 30 miles per hour it was approximately 2 1/4 seconds away.

One count in the declaration was based upon the alleged violation of two city ordinances. The defendant assigns error on the admission of these ordinances in evidence and the action of the judge in charging that a violation of the same was negligence per se. The insistence is that they are applicable only to intersections at which signs of a particular type described in the ordinances had been errected and that no such signs had been erected at the intersection here involved. In other words, the ordinance requires that stop signs 'be...