Smith v. Steele

• Decision Date: 23 August 1956
• Citation: 44 Tenn.App. 238,313 S.W.2d 495
• Parties: Elsie B. SMITH and L. Kenneth Smith, Plaintiffs-in-Error, v. H. E. STEELE and Gwendolyn Steele, Defendants-in-Error.
• Court: Tennessee Court of Appeals

Page 495

313 S.W.2d 495

44 Tenn.App. 238

Elsie B. SMITH and L. Kenneth Smith, Plaintiffs-in-Error, v. H. E. STEELE and Gwendolyn Steele, Defendants-in-Error.

Court of Appeals of Tennessee, Western Section, at Jackson.

Aug. 23, 1956.

Rehearing Denied Sept. 28, 1957.

Certiorari Denied by Supreme Court Feb. 8, 1957, May 3, 1957.

Anthony A. Aspero, Nell Sanders Aspero, Aspero & Aspero, Memphis, for plaintiffs in error.

Allen Cox, Jr., Carroll C. Johnson, Memphis, for defendants in error.

AVERY, Judge.

The plaintiff below, Elsie B. Smith, brought damage suit against the defendants below, H. E. Steele and Gwendolyn Steele, for personal injuries growing out of a collision of automobiles which occurred at the intersection of Overton Park Avenue with North Watkins Street in the City of Memphis. Plaintiff sued for $200,00, of which the first count of her declaration alleges $100,000 for actual and compensatory damages, and the second count of her declaration is for an additional $100,000 as special and punitive damages.

There is also a suit by L. Kenneth Smith, husband of Elsie B. Smith, against the defendants, H. E. Steele and Gwendolyn Steele, seeking to recover damage in the amount of $10,306.49. The first count of the declaration seeks $10,000 damages growing out of the injury to his wife, which the declaration alleges required him to expend large sums for medical aid, hospitalization, and for damages resulting from being denied his rights and privileges as a husband and the loss of her assistance and attention in the home and at his place of business. The second count of that declaration charges damages to the automobile in the sum of $306.49.

By both declarations the negligence charged against the defendant, Gwendolyn Steele, in the first counts thereof, which are common law counts, is that the defendant, Gwendolyn Steele, drove her automobile at a dangerous rate of speed, without keeping a proper lookout ahead, without having the vehicle under control, by ignoring the stop sign on North Watkins Street, and entering the intersection without first stopping, and by crashing head-on into the left side of the vehicle plaintiff was driving. In the second counts of both declarations, defendant is charged with violating certain Municipal Ordinances of the City of Memphis, Volume 1, Chapter 42, Sections 1682, 1683, 1688, 1713, 1738, and 1739, which generally relate to reckless driving; speed limit of 30 miles per hour; approaching intersection without giving right-of-way to the vehicle in the intersection, driving in a careful manner and observing stop signs erected by municipal authorities and the right-of-way of vehicles on through streets, all of which it is alleged that defendant violated.

The two automobiles came together in the aforesaid intersection on March 19, 1954, while Mrs. Elsie B. Smith was driving her husband's Buick automobile in a westerly direction on Overton Park Avenue, which is a Through Street for that intersection, and Mrs. Gwendolyn Steele was operating a Ford automobile which she was driving in a northerly direction on North Watkins Street, which is a Stop Street for that intersection.

The declarations allege that at the time of the collision, the plaintiff Elsie B. Smith was in her second trimester of pregnancy and was wearing maternity supports for the protection of her unborn child, and that as a result of the impact she was greatly frightened, severely nervous, placed on a stretcher and transported to the hospital by ambulance; that she suffered pain in her left shoulder and neck; injury to her cervical spine; that her head was lashed about and that she has suffered pain continuously, her injuries having failed to heal and becoming worse, resulting in dizziness, etc. While the declarations set out at great length the kind of suffering the plaintiff Elsie B. Smith had undergone, and her fears that she might lose her baby or that it would be disfigured, together with the injuries creating severe mental anguish and pain, all of same are generally referred to as conditions which exist in the body of a pregnant woman from a 'whiplash' injury.

The pleas filed by the respective defendants, H. E. Steele and Gwendolyn Steele, to the respective counts of the declarations are that of not guilty; contributory negligence; and by detailed 'specific and special pleas' to the effect that Mrs. Steele proceeded into the intersection in a careful manner; that the view across the southeast corner of the intersection is obstructed and that the intersection is a blind intersection, so that traffic proceeding west on Overton Park Avenue cannot be seen by drivers of vehicles proceeding north on Watkins Street until the intersection is reached; that when Gwendolyn Steele drove into the intersection before it was entered by plaintiff, the plaintiff then came into the intersection and struck defendant's car; that Mrs. Steele put on her brakes and did everything she could to prevent the collision; that Mrs. Smith was driving at a dangerous and reckless rate of speed; was not keeping a proper lookout ahead and did not put on her brakes or make any attempt to avoid the accident when she saw, or should have seen, the accident was imminent; that she did not have her vehicle under control, and she categorically denies each and every allegation of negligence contained in the declarations, except that she admits having not stopped completely before entering the intersection.

As to the second counts of the declarations, the pleas reiterate the specific allegations of contributory negligence set out in the first count, and reiterate the care exercised by Mrs. Steele, all as set out in the pleas to the first counts, and specifically deny that Gwendolyn Steele was acting as the servant and agent of H. E. Steele.

Both cases were tried at the same time to a Court and jury, with separate verdicts being rendered in accord with the instructions of the Court. The verdict in favor of Elsie B. Smith and against both defendants was $550. The verdict in favor of L. Kenneth Smith against both defendants was for $375. Both verdicts were approved by the Trial Judge. Motions for new trials were made, overruled, exceptions preserved, appeals prayed, granted, and perfected to this Court, where the plaintiffs below, Elsie B. Smith and her husband, L. Kenneth Smith, have assigned errors.

Assignments of Error I to IV, both inclusive, are to the simple effect that the verdicts are so inadequate as to evince passion, prejudice, corruption, unaccountable caprice, or compromise on the part of the jury.

Assignment of Error V is levelled at the refusal of the Trial Court to, upon motion of plaintiffs, direct the jury to return verdicts in favor of plaintiffs.

Assignment of Error VI is levelled at the refusal of the Court to grant a new trial upon newly discovered evidence.

Assignment of Error VII is levelled at the refusal of the Court to give in charge to the jury certain special requests by plaintiffs. This Assignment is made up of: (a) request for special instructions with respect to 'Obstruction of View'; (b) 'Wantonness of a Defendant in Driving Automobile' and 'Wanton Injuries by Auto'; (c) with respect to 'Punitive Damages'; (d) elements included in measure of damages; 'Mental Suffering Different from Physical'; 'Life Expectancy'; and 'Purchasing Power of Today's Dollar'.

Assignment of Error VIII is levelled at the instructions given by the Court to the jury with respect to the duty of an operator of a vehicle on a Stop Street and the operator of a vehicle on a Through Street.

Assignment of Error IX was levelled at the action of the Court in directing the jury to consider the case only upon the issues made by the pleadings with respect to actual damages as explained by the Court and not to consider the issue with respect to punitive damages.

Assignments of Error X and XI are levelled at the action of the Court in overruling plaintiff's motion requesting the Court to physically deliver to the jury the written charge.

Assignment of Error XII is levelled at the action of the Court in refusing to grant plaintiffs' motion to rehear and reconsider the plaintiffs' 'Motion to Rehear and Reconsider Motions for New Trials'.

Let us first deal with plaintiffs' Assignment of Error VIII. We have carefully read the entire charge of the Court and have re-read that part of the charge dealing with the law relative to the duty of the operator of a motor vehicle to stop at an intersection where there is a stop sign. The Court charged the jury in this connection, that:

'It is the contention of the plaintiffs that this collision and resultant injuries to Mrs. Smith and damages to Mr. Smith was the direct and proximate result of the negligence of the defendant Mrs. Steele, in that they say that she failed to bring her car to a stop in compliance with the city ordinance and the stop-sign erected at the southeast corner, but instead entered the intersection without keeping a proper lookout and without having her car under control and in failing to yield the right-of-way to the plaintiff Mrs. Smith.

'Now, Lady and Gentlemen of the Jury, if you find from the greater weight or preponderance of the evidence this theory and contention true, then you should return your verdicts for both plaintiffs in these two cases.' (R. 368)

And again he said:

'Now, Lady and Gentlemen of the jury, under the City Ordinance Overton Park Avenue is designated as a through Street and North Watkins Street is designated as a stop street at this particular intersection. This simply means that a vehicle traveling on a through street has the preferential right-of-way over vehicles traveling on a stop street. The operator of the vehicle on the through street has a right to assume that the driver of a vehicle traveling on the stop street will bring his vehicle to a stop before entering the through street, in compliance with this ordinance. The operator of a vehicle on...