Smith v. Sloan

• Decision Date: 17 December 1949
• Citation: 25 Beeler 368,227 S.W.2d 2,189 Tenn. 368,225 S.W.2d 539
• Parties: SMITH et al. v. SLOAN. 25 Beeler 368, 189 Tenn. 368, 225 S.W.2d 539
• Court: Tennessee Supreme Court

Page 539

225 S.W.2d 539

SMITH et al. v. SLOAN.

25 Beeler 368, 189 Tenn. 368, 225 S.W.2d 539

Supreme Court of Tennessee.

Dec. 17, 1949.

Rehearing Denied Feb. 10, 1950.

See 227 S.W.2d 2.

Creekmore & Buhl, Knoxville, for plaintiff in error.

Poore, Cox, Baker & McAuley, Knoxville, for defendants in error.

GAILOR, Justice.

This is an action in negligence for personal injuries alleged to have been sustained by plaintiff, Ann T. Sloan, when she fell in the aisle of moving picture theater operated by the defendants Smith. The case was tried to a jury in the Circuit Court of Knox County, and a verdict was returned for the plaintiff in the sum of $2,000. After suggesting remittitur of $500, the Trial Judge overruled motion for new trial and both parties appealed to the Court of Appeals. That Court, on the ground that there was shown no actionable negligence to support a judgment against the defendants, held that the Trial Judge was in error in not directing a verdict for the defendants, and reversed and dismissed the case. The plaintiff filed petition for certiorari, which we granted, and after argument, the case is before us for final disposition.

We find that the first assignment of error presented by the petition for certiorari is valid and must be sustained. It is as follows:

'The Court of Appeals erred in holding that there was no evidence to go to the jury and that the Trial Court should have directed a verdict in favor of the defendants. This holding in the Court of Appeals is erroneous for the reason that there is an abundance of evidence in the record requiring the Trial Judge to submit the issues to the jury for determination. No motion was made by the defendant at any stage of the hearing for a directed verdict on behalf of the defendants.'

Under Rule 11(5) of the Court of Appeals, 29 Tenn.App. 831, and many decisions of that Court, for example, Grace v. Curley, 3 Tenn.App. 1; Tenn. Brokerage Co. v. Larkin, 1 Tenn.App. 276; Maddox v. Cone, 1 Tenn.App. 534; Rhoton v. Burton, 2 Tenn.App. 164; Ray v. Crain, 18 Tenn.App. 603, 80 S.W.2d 113, we find the judgment of the Court of Appeals was erroneous. The defendants made no motion for a directed verdict, either at the end of plaintiff's proof or at the end of their proof, or at the end of all the evidence. The motion for new trial continued no ground assigning as error the submission of the issues to the jury. Under many cases decided by this Court and the Court of Appeals, the failure to make such motion was a waiver. Seymour v. Southern Railroad Co., 117 Tenn. 98, 98 S.W. 174; Nashville Ry. & Light Co. v. Henderson, 118 Tenn. 284, 99 S.W. 700; Tenn. Central Ry. Co. v. Zearing, 2 Tenn.App. 451, 454. When hearing the motion for new trial, if the Trial Judge had found that the case should not have been submitted to the jury, he would have ordered a new trial, but he would not have been justified in dismissing the case. So. Const. Co. v. So. Surety Co., 10 Tenn.App. 506, 519.

Further, we think the Court of Appeals erred in holding on the evidence, that no issue was created for the jury. The plaintiff, holding an 18 months-old-baby in her arms, accompanied by her brother, her mother and sister, walked down the aisle of a moving picture theater operated and owned by the defendants Smith. There was an iron grating, an outlet for a hot-air furnace, in the aisle which was otherwise covered with a carpet. The plaintiff, her brother, and her mother, testified that the grating was displaced and lying diagonally across the opening, above the floor, and not fitted into its proper place. The plaintiff testified that she fell into the hole thus created, and received the injuries for which she sued. The brother testified that he saw the plaintiff fall into the hole, and after she had fallen, replaced the grating. The plaintiff further testified that it was too dark for her to see in the aisle, and that the lights, though installed, were not burning at the time. The plaintiff's brother corroborated this testimony.

While we are fully sensible of, and approve the rule that the owner of a moving picture theater is not an insurer, and is liable to its patrons only for the exercise of reasonable care for their safety, Lowe's Nashville & Knoxville Corp. v. Durrett, 18 Tenn.App. 489, 79 S.W.2d 598, we think that the foregoing evidence for the plaintiff created a prima facie case, viewing the evidence as we must in the light most favorable to the plaintiff. It was the sole and conclusive province of the jury to weigh this evidence for the plaintiff against the denials by the defendants, and to consider the question of notice as being an element of reasonable care, and the discrepancies and improbabilities as being an element of the credibility of the witnesses,--all which with the element of causation, was exclusively for the jury.

The decision of Jackson v. B. Lowenstein & Bros. Inc., 175 Tenn. 535, 136 S.W.2d 495, 496, is much in point. The opinion was written for this Court by that great lawyer, the late Edward J. Smith, of the Nashville Bar, and contains a fine statement of the different functions of the jury on the one hand, and the Appellate Court on the other.

'These two cases (S. S. Singleton Abbey v. S. S. Paludina (1927), A.C., 16, and Palsgraf v. Long Island Railroad Co., 1928, 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253), by virtue of the sharp difference of opinion of the judges, should be a warning to appellate courts not lightly to assume the primary duty of determining liability or nonliability, in actions of tort, but to leave that duty where the Constitution has placed it, with the jury as triers of facts, and if they act capriciously and arbitrarily to supervise their action.' Jackson v. B. Lowenstein & Bros., Inc., 175 Tenn. 535, 539, 136 S.W.2d 495.

'Equally, when courts or statutes have fixed the legal standard of reasonable conduct, e. g., as being that of a reasonable man, and have no exacter rule, the determination of whether any kind of behavior conforms to it or not is a mere question of fact. It is not a question of law because there is no rule in question. That, in reaching their conclusion, the jury must reason, and 'must judge the facts,' is not material.' Thayer's Preliminary Treatise on Evidence (1898), 250.

After the...