Shook v. Simmons

• Decision Date: 13 November 1939
• Citation: 137 S.W.2d 332,23 Tenn.App. 685
• Parties: SHOOK v. SIMMONS, and three other cases.
• Court: Tennessee Court of Appeals

137 S.W.2d 332

23 Tenn.App. 685

SHOOK v. SIMMONS, and three other cases.

Court of Appeals of Tennessee, Middle Section.

November 13, 1939

Certiorari Denied by Supreme Court February 17, 1940.

Appeal in Error from Circuit Court, Franklin County; L. R. Darr Judge.

Personal injury actions by Allen Shook, Gordon Alexander, Mrs. George Zimmerman, and George Zimmerman against T. C. Simmons. From adverse judgments defendant appeals in error.

Affirmed.

A. T Stewart, Chester C. Chattin, and J. B. Templeton, all of Winchester, and Joe Brown and W. D. Spears, both of Chattanooga, for plaintiff in error.

Harvey M. Templeton, of Winchester, and W. B. Lamb, of Fayetteville for defendants in error.

FELTS Judge.

Allen Shook, Gordon Alexander, and Mr. and Mrs. George Zimmerman, guests of T. C. Simmons in his automobile, were injured when he ran the car off the highway down an embankment; and they brought these suits against him to recover for their injuries. The suits were tried together, resulting in verdicts and judgments for plaintiffs in these amounts: Allen Shook $3,000, Gordon Alexander $2,000, Mrs. George Zimmerman $2,000, and George Zimmerman $500. Simmons appealed in error and has assigned errors.

He insists that verdicts should have been directed for him because there was no evidence that he was negligent, and because plaintiffs were guilty of contributory negligence.

The accident happened about 8:30 P. M. September 12, 1937 on the highway between Cleveland and Chattanooga. Simmons, Shook and Alexander lived in or near Winchester, Franklin County, Tennessee, and Mr. and Mrs. Zimmerman had formerly lived there but were then living in Chattanooga. On the afternoon of September 12, 1937, which was Sunday, Simmons invited Shook and Alexander to accompany him in his car to Cleveland, Tennessee, to attend a meeting of the Church of God. On the way there they stopped at the home of the Zimmermans in Chattanooga; and Simmons invited the Zimmermans to accompany them to the meeting, which they did. As they were returning to Chattanooga, and when they had reached a point about 12 miles north of Chattanooga, the accident occurred.

The car, a two seated Ford, was being driven by Simmons. Alexander was on the front seat and Shook and the Zimmermans were on the rear seat. The highway was straight and level. Its paved surface was 18 feet wide. On the right there was a smooth, solid shoulder 12 or 15 feet wide and on the left a shoulder 10 feet wide. The only witnesses as to what happened just before and at the moment of the accident are the plaintiffs themselves. The defendant did not take the stand and did not offer any evidence to dispute the plaintiffs' version of the occurrence. According to their testimony, the Zimmermans and Shook were on the rear seat engaged in a discussion or argument about the activities of the American Legion Post at Winchester, when Simmons "turned around a little," took his hand off the steering wheel, and said to them, "Oh, cut out that argument." At this instant the car, going 65 or 70 miles per hour, suddenly overtook an automobile which they had been following and which was stopping or had stopped on the pavement. Also another car was coming from the opposite direction meeting the Simmons car. He swerved his car sharply to his right, but without checking its speed or putting on its brakes, and ran off the pavement across the shoulder down an embankment four or five feet high, landing in a field. All the parties were injured, but Simmons less than the rest of them. No question is made as to the extent of plaintiffs' injuries or the amounts of the verdicts.

There is no suggestion that the accident was due to any defect in defendant's car. It was apparently in perfect mechanical condition. The headlights and rear lights were burning on the car he was overtaking, and could have been seen by him from the time he approached within 500 feet of it. If it stopped suddenly when he was too close on it to stop, there was room for him to have safely passed to the right of it on the shoulder, which was smooth, solid and 12 or 15 feet wide. In the absence of any explanation from defendant, we think the only reasonable inference is that, as he was overtaking the other car at a speed of 65 or 70 miles per hour, he withdrew his attention from the road, and upon seeing the car immediately in front of him occupying the right half of the pavement and the other car coming on his left half, he lost control of his car and swerved off the embankment; and that he was thus guilty of negligence which was the proximate cause of plaintiffs' injuries. Lea v. Gentry, 167 Tenn. 664, 73 S.W.2d 170; Rice-Stix D. G. Co. v. Self, 20 Tenn.App. 498, 511, 101 S.W.2d 132, 141. That defendant was confronted with an emergency does not excuse him because his own negligence created the emergency. Cullom v. Glasgow, 3 Tenn.App. 443; Chumley v. Anderton, 20 Tenn.App. 621, 103 S.W. 331; 5 Am. Jur. 600, 601.

We do not think it can be adjudged, as a matter of law, that plaintiffs were guilty of contributory negligence. The only defense which defendant undertook to support by proof below was that he and plaintiffs were all drunk and that they were guilty of contributory negligence in riding with him in that condition. Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32, 47 A.L.R. 323; Hicks v. Herbert, 173 Tenn 1, 113 S.W.2d 1197. It is true defendant did not testify himself, but he produced five witnesses who said all the occupants of the car were drunk or appeared to have been drinking. However, plaintiffs denied this and said none of the occupants had taken a drink on the journey. But the jury settled this issue in favor of plaintiffs and we are precluded from looking to it. The matter now relied on as contributory negligence is that plaintiffs were riding with defendant while he was driving at a speed of 65 or 70 miles per hour. It is said that it was their duty to protest and, if necessary, to get out. We find nothing in the evidence to support this insistence. On the way to Cleveland defendant seems to have driven at a proper rate of speed and with due care. At least nothing to the contrary appears in the evidence. On the way back Alexander had been driving. The parties stopped at a filling station, Alexander and Shook went in for a Coca Cola, and defendant took the wheel. He had driven only three or four miles...