Spain v. Livingston
| Decision Date | 15 November 1968 |
| Citation | 59 Tenn.App. 346,440 S.W.2d 805,45 A.L.R.3d 652 |
| Parties | , 45 A.L.R.3d 652 Lloyd George SPAIN, next of kin of David Wayne Spain, Deceased v. J. D. LIVINGSTON and Smith-Higgins Company, Inc. |
| Court | Tennessee Court of Appeals |
Bernard Cantor, Warren Hogston, Johnson City, for plaintiffs in error, Lloyd George Spain and David Wayne Spain.
Thomas E. Mitchell, Johnson City, for defendant in error, J. D. Livingston.
Wilson, Worley, Gamble & Dodson, Kingsport, for defendant in error, Smith-Higgins Co., Inc.
Lloyd George Spain, as next of kin, brought suit against J. D. Livingston and the Smith-Higgins Company, Livingston's employer, to recover damages for the death of David Wayne Spain, who was struck by an automobile driven by Livingston. At the time Spain was struck, he and a friend were pushing a disabled motorcycle in an easterly direction and were on the extreme right-hand edge of the paved portion of the Jonesboro-Johnson City Highway. The trial judge directed a verdict for the defendants on the ground the deceased, by walking on the right-hand side of the pavement, violated T.C.A. 59--838(b), the pedestrian statute, and thus 'was guilty of negligence as a matter of law which would preclude any recovery * * * in this case.' The plaintiff has appealed contending that the case should have been submitted to the jury.
In the instant case, the only living witness to the accident was the defendant, though other witnesses testified as to physical evidence, or lack thereof, and to statements of the defendant.
The accident occurred at about 7:45 P.M. on February 16, 1967, at a point on U.S. Highway 11E approximately 200 feet west of the McKinley Road intersection. In that area, Highway 11E is straight for a distance of some 3000 feet. Each lane being 12 feet in width and has four lanes for travel. The two lanes for eastbound traffic are separated from the westbound traffic lanes by an elevated grassy strip of land approximately 16 feet in width. The shoulders of the road are gravelled and are six feet in width. Cross-overs through the center strips are provided at irregular intervals. One such cross-over is located approximately 150 feet west of the point where the accident occurred. The highway is lighted by street lamps on poles set at the side of the highway, and there is evidence that these lamps were a distinct aid to visibility on the night the accident occurred. The posted speed limit at the scene of the accident was 45 miles per hour.
The discovery deposition of the defendant Livingston was read in evidence. According to Mr. Livingston, his last business call for his employer was in Jonesboro, and that after taking an order for drugs, he drove toward Johnson City on Highway 11E; that he approached the accident scene in the outside traffic lane at a speed of approximately 45 miles per hour; his automobile lights were burning on 'dim' and visibility was good. Traffic, both east and westbound, was light. Mr. Livingston testified that as he neared the accident scene, he was blinded by the lights of an 'oncoming' automobile for 'seven or eight or ten seconds' and could see nothing in front of him; that he did not reduce the speed of his automobile during this time but continued to drive as before; that he felt something strike his automobile and the lights went out immediately; that he was able to stop his automobile in two or three car lengths, he saw shoes next to or a little in front of his automobile and, on looking to the rear, saw David Spain lying on the shoulder of the road some five feet in front of the motorcycle, which was also on the shoulder of the road.
(Testimony of several witnesses and pictures made at the scene show that Wayne Spain was wearing trousers of an 'off-white' color and a bright orange jacket).
Mr. Livingston testified that he then drove his automobile across the highway, left it on the parking lot of the LLE Market, and ran back across the highway to 'flag down' a motorist going toward Johnson City in order to have the driver 'phone for help. There was evidence that in the time defendant was absent from the scene, other motorists had come upon the accident and had left to 'phone for an ambulance.
The motorist who was 'flagged down' by Livingston testified that Mr. Livingston stated at that time, he had hit a motorcycle and he believed he had killed two people. (There is evidence that, at the time, the body of Spain's companion was not in sight and had not been found.)
The police officer who investigated the accident testified he found no indication on the highway that the defendant ever applied his brakes, either before striking the boys or after the impact; that Spain's companion, Frank Shuler, was found off the road and down an embankment some 60 feet east of the point where Wayne Spain was found. The officer also testified that the motorcycle was not damaged.
There was no direct evidence that the boys were on the roadway pushing a disabled motorcycle at the time they were struck; however, such fact was plead and the plaintiff is bound by his pleadings. See Woods v. Meacham, 46 Tenn.App. 711 at page 749, 333 S.W.2d 567, 584.
The defendants do not seriously contend in their brief or in argument that the defendant Livingston was not negligent or that Livingston was...
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