Smith v. Craig

• Decision Date: 07 February 1972
• Citation: 484 S.W.2d 549
• Parties: Willie SMITH, Appellee, v. Marley CRAIG, Appellant. Beulah SMITH, Appellee, v. Marley CRAIG, Appellant.
• Court: Tennessee Court of Appeals

Page 549

484 S.W.2d 549

Willie SMITH, Appellee, v. Marley CRAIG, Appellant.

Beulah SMITH, Appellee, v. Marley CRAIG, Appellant.

Court of Appeals of Tennessee, Western Section.

Feb. 7, 1972 Certiorari Denied by Supreme Court Aug. 7, 1972.

W. H. Lassiter, Maddox, Lassiter & Jones, Huntingdon, for appellant.

Frank L. Hollis, Peeler & Hollis, Camden, for appellees.

MATHERNE, Judge.

These are companion cases, consolidated for trial and on appeal, wherein the plaintiff Beulah Smith recovered a verdict and judgment of $7,000.00 for personal injuries received as result of having been run into by the defendant motorist as the plaintiff was attempting to walk across Highway 69 in Benton County, Tennessee; and, her husband, the plaintiff Willie Smith, recovered $3,000.00 for medical expenses and loss of services of his wife as result the injuries sustained by her.

The defendant motorist Marley Craig by two assignments of error insists that a verdict should have been directed in his favor due to the contributory negligence of the plaintiff; and, the Trial Judge erred in charging the doctrine of last clear chance. Two other assignments complain of two other charges given the jury by the Trial Judge.

The plaintiff Beulah Smith testified that on the day of the injury she rode home from work with a fellow worker, Gene Cagle. Mrs. Smith stated Mr. Cagle drove into the driveway of her home, let Mrs. Smith out of the automobile, backed his vehicle into Highway 69 and drove toward Holiday, the direction from which he had come. Mrs. Smith stated she thereupon walked from her position on the side of the driveway of her home to the edge of the blacktop of Highway 69; she stopped and looked to her left and saw two boys some distance away; she looked to her right and saw only the Cagle automobile traveling away from her and nearing the crest of a hill which was about 145 yards distance from her. This plaintiff stated she did not see the vehicle of the defendant Craig approaching from her right; she thereupon proceeded to cross Highway 69 toward her mailbox located on the opposite side of the highway. Mrs. Smith stated she did not again look to the right, or to the left, but proceeded to walk at a normal gait across the highway. When she was within three or four feet of the far side of the blacktop, she heard brakes being applied, and for the first time became aware of the defendant's vehicle about 40 feet to her right and approaching her. This plaintiff stated the approaching vehicle struck her and caused rather serious injuries. The plaintiff stated she could tell by the manner in which her leg was injured that the front of the defendant's vehicle struck her.

The defendant Marley Craig testified that when he came over the hill he observed a car stopped on the highway in the area of the plaintiff's home and saw a woman getting out of the car, go around the back of the parked car, and proceed to walk out into the highway. The defendant testified:

'Q. Relate to the Court and jury, Mr. Craig, what took place?

A. As I topped the hill, she was getting out of the car, and walked right around the car and walked right straight across the road there in the side of my car. Never looked neither way.

Q. When did you first realize that she was going to continue on? In your path?

A. Well after she crossed the center line, I knew--

Q. What did you do when she did that?

A. I hit my brakes and pulled over just as far as I could get.'

The defendant further testified that the plaintiff did not look either way when she started across the highway, nor at any other time while crossing. He further described her as walking with her head down not looking either way. The defendant stated that the plaintiff got two-thirds across his lane of traffic; he at no time sounded his horn; he did not attempt to swerve left because he did not believe in getting on the other man's side of the road; he drove to the right as far as he could without hitting the mailbox, which object he indicates he fully intended to miss. The defendant said the plaintiff walked into the left rear fender of his automobile. The defendant stated he was driving 45 miles per hour at the time.

The evidence establishes it was raining at the time of the mishap and the highway was wet. It is also established the defendant pulled to his right off the blacktop at a distance of 43 feet before reaching the mailbox, and the right wheels of his vehicle missed the mailbox by about six inches. After the impact, the defendant's vehicle veered to the right off the highway and down an embankment. The record reveals that neither the plaintiff nor the defendant suffers any impairment of sight or hearing. It is established by independent testimony that a driver traveling north over the hill could observe a person walking on the highway in the area of the mailbox for a distance of about 421 feet back south from the mailbox. Highway 69 at the point of the collision is a heavily traveled highway. The accident happened in a rural area during daylight hours, and there is no evidence of oncoming traffic facing the defendant.

There is considerable argument in this Court as to whether the declaration averred facts as would permit the case to go to the jury under the doctrine of last clear chance; and, whether the Trial Judge erred in charging that doctrine. We hold the Trial Judge erred in charging the doctrine because under the facts, the doctrine of last clear chance cannot be invoked against the defendant. This conclusion is based upon our finding that the plaintiff by her testimony is guilty of proximate contributory negligence which continued as a direct and proximate cause of the impact, and she is therefore barred from asserting the doctrine. Todd v. Cincinnati, N.O. & T.P. Ry. (1915) 135 Tenn. 92, 185 S.W. 62; Zamora v. Shappley (1941) 27 Tenn.App. 768, 173 S.W.2d 721; Gardner's Masonry Contractors, Inc. v. St. Louis-San Francisco Railway Co. (Tenn.App.1971) 470 S.W.2d 945.

The difficulty presented is the effect of the conduct of the defendant, considering only his testimony, even though the plaintiff be guilty of continuing and concurring negligence which directly contributed to the impact. It is the conclusion of this Court that the proper theory upon which the plaintiff should proceed is that of 'discovered peril' rather than 'last clear chance.'

Admittedly, the two doctrines have been treated together, and the courts and text writers have referred to them together or as in the alternative in such manner as to imply there is no difference between the two. We submit this similarity of treatment is not at all justified, and it is the distinction between the two doctrines which would permit the plaintiff in the case at bar to have a trial under the doctrine of discovered peril, even though she cannot rely upon last clear chance.

At the outset it must be recognized that reliance upon either doctrine admits of negligence on the part of the plaintiff. If the plaintiff is not guilty of some degree of negligence in placing himself in the perilous position, neither doctrine would be applicable. See: London v. Stepp (1965) 56 Tenn.App. 161, 405 S.W.2d 598.

The...