Southern Bell Tel. & Tel. Co. v. Skaggs

• Decision Date: 11 January 1951
• Citation: 34 Tenn.App. 549,241 S.W.2d 126
• Parties: SOUTHERN BELL TEL. & TEL. CO. v. SKAGGS. 34 Tenn.App. 549, 241 S.W.2d 126
• Court: Tennessee Court of Appeals

Page 126

241 S.W.2d 126

SOUTHERN BELL TEL. & TEL. CO. v. SKAGGS.

34 Tenn.App. 549, 241 S.W.2d 126

Court of Appeals of Tennessee, Western Section.

Jan. 11, 1951.

Certiorari Denied by Supreme Court May 12, 1951.

[34 TENNAPP 552] Sam P. Walker, Memphis, for plaintiff in error.

Harold R. Ratcliff, Memphis, for defendant in error.

TIPTON, Special Justice.

For convenience the parties will be referred to as plaintiff and defendant as they were in the court below.

The plaintiff sued the defendant for $21,500 damages for personal injuries and property damage, and in his declaration, which is in three counts, alleged that on January 12, 1950, he was driving his Pontiac automobile in an easterly direction upon Highway 70 in Shelby County, and that when he reached a point on said highway where the same crosses the Louisville & Nashville Railroad tracks by means of an overpass, he discovered a truck owned and operated by the defendant parked in his traffic lane a short distance east of the bridge and immediately below the crest of the hill, so that persons driving along the highway from the west were unable to see said truck parked in the highway, and that the plaintiff was unable to see the same until he was immediately upon it; that the highway at this point is asphalt and slippery when wet; that the accident happened at dusk, the sky was overcast, that it was raining and that said truck was not lighted, no flares or other warning signs were placed upon either side of the truck, and that no one was stationed west of the truck to flag traffic approaching from the west, and that the plaintiff was almost upon said truck before it could be seen, and [34 TENNAPP 553] before he could stop his car or swing to the left, he ran into the rear of said truck, as a result of which he suffered serious and permanent personal injuries, as well as damage to his car.

The first count of the declaration charges common law negligence, grounded upon the alleged parking of said truck immediately below the crest of the hill upon the main travelled portion of said highway, failing to have any lights thereon, or to give any warning in any way to motorists approaching from the west of its presence, while the second count is based upon the statute, Code, Sec. 2690, prohibiting the parking of vehicles upon the improved or main travelled portion of a highway. The third count, to which Motors Insurance Company was joined by amendment as a party plaintiff, sought a recovery for damage to said automobile.

In addition to pleas of the general issue and contributory negligence, the defendant specially pleaded that said truck was not parked below the crest of a hill, but that the same was parked at the west end of said overpass and was visible for a long distance by a person approaching from the west, and that if plaintiff did not see said truck in time to avoid colliding with it, this was due to his own negligence. The plea denied that the accident happened at dusk or that visibility was bad, and averred that there was no necessity for lights, that a 'men-working' sign was placed some distance west of where said truck was parked, and that the defendant's foreman was on the highway to flag traffic, but that the plaintiff ignored both said sign and the man flagging traffic and continued at a high rate of speed until he ran into said truck. The plea further averred that, on this occasion, the employees of the defendant were engaged in repairing damage done to its lines and cables by a severe ice storm [34 TENNAPP 554] a few days before the accident, that it parked said truck for the purpose of unloading equipment needed to make said repairs, and that there was no other place to park the same, and denied that such parking was negligence, either common law or statutory.

The case was tried to a jury, which returned a verdict for the plaintiff in the following language: 'We the jury find for the plaintiff $5,000.00 for personal injuries and $0 for personal property damage, C. D. Richards, foreman'

Its motion for a new trial having been overruled, the defendant has perfected its appeal to this Court and assigns error.

The first assignment of error is that there is no evidence to support the verdict, and this assignment necessitates a review of the facts.

As is often true in negligence cases, the evidence offered by the plaintiff and that offered by the defendant is in hopeless conflict, both as to the point where the accident occurred, the weather conditions prevailing at the time, the alleged acts of negligence on the part of the defendant, and the alleged contributory negligence of the plaintiff; however, viewing the testimony in the light most favorable to the plaintiff, as we are required to do because of the jury verdict in his favor, there is material evidence in the record from which the jury could have found the facts to be as follows:

The accident happened about 4 P.M. on January 12, 1950, on U. S. Highway 70 some 2 miles west of Arlington in Shelby County. At this point said highway, which runs in a general easterly and westerly direction, crosses the tracks of the Louisville & Nashville Railroad Company by means of an overpass consisting of approaches of some length both to the east and to the west of the [34 TENNAPP 555] railroad tracks, with a bridge some 170 feet long spanning the tracks. In order to obtain the height necessary to clear the tracks, both of these approaches are built upon an earth fill, resulting in the bridge being at the crest of a hill formed by these approaches.

The lines and cables of the defendant which were located on the south side of said railroad tracks had been severely damaged by an ice storm occurring a few days before and, on the afternoon of the accident, it had a repair crew engaged in repairing this damage, in the course of which one of the defendant's employees parked one of its trucks in the east bound traffic land of the highway at the east, or Arlington end of this bridge, in order to unload some material for use in such repairs, and, while said truck was so parked, the plaintiff, who was driving a 1949 Pontiac automobile east on said highway from Memphis to his home in Arlington, ran into the rear end of said truck, resulting in the plaintiff receiving severe personal injuries, as well as suffering considerable car damage. At the time the accident occurred, it was almost dark, and was raining hard, clouds were hanging low, and visibility was very poor.

As the plaintiff came up the west approach to the bridge, he was travelling about 40 miles an hour and was keeping a lookout ahead, but the truck was not visible until his car got on the west end of the bridge, at which time he saw the truck parked in his traffic lane at the east end of the bridge. The pavement at this point is asphalt or blacktop and was very slick, and, as soon as he saw the truck, the plaintiff applied his brakes, but because of the slick pavement they locked, whereupon the plaintiff released his brakes momentarily and then applied them again, but this caused the car to slide again without checking its speed, and, being unable to stop, the [34 TENNAPP 556] plaintiff crashed into the rear of the parked truck with the results stated above. The truck had no lights burning on it, nor did the defendant, either by the use of flares, road signs, flagmen or in any other way, give any warning to east bound traffic of the fact that the truck was parked in the south, or right hand, traffic lane.

It will be plainly seen from the above statement of facts that there was ample evidence to make the question of whether the defendant was negligent and whether its negligence was the proximate cause of the accident a matter to be determined by the jury, and the first assignment of error is overruled.

The second assignment of error complains of the failure of the trial judge to direct a verdict in favor of the defendant, it being strongly insisted that the plaintiff was guilty of contributory negligence as a matter of law, in that he saw or should have seen the parked truck in ample time to avoid the collision, either by stopping his car or by passing around the truck to its left.

For a number of years, the basic rule, as stated in West Construction Company v. White, 130 Tenn. 520, 172 S.W. 301, was that it was negligence as a matter of law for a person to operate an automobile at night at a rate of speed faster than would permit him to stop or avoid an obstruction within the range of his lights; however, this rule was modified, if not superseded in the later case of Main Street Transfer & Storage Company v. Smith, 166 Tenn. 482, 63 S.W.2d 665, 668, in which the Supreme Court, in holding that the failure of the plaintiffs to see a large unlighted truck parked below the crest of a hill at a point where, because of the hill, it was not revealed by the lights of plaintiffs' car until the car was too close to it to be stopped, was not contributory [34 TENNAPP 557] negligence as a matter of law but that the negligence of the plaintiffs was a jury question, said:

'(3) The accident in which petitioners were injured occurred on a state highway, between two populous communities. This highway, as well as others of like character, was built to accommodate vehicles traveling at a high rate of speed. Speed as a factor of negligence in the operation of an automobile has been rendered of minor importance by common experience and by the removal of an arbitrary miles per hour limit from the statutes. These conditions have relatively increased the degree of negligence and danger involved in the parking of stationary vehicles or other obstructions on the paved surface of a highway. Travelers have become more confident of a free and unobstructed passage ahead on the highways. In these circumstances, we cannot now say with confidence, as a matter of law, that a person of ordinary prudence and caution would have reduced his speed below the rate of 25 miles an...