Stinson v. Daniel

• Decision Date: 10 March 1967
• Citation: 414 S.W.2d 7,220 Tenn. 70,24 McCanless 70
• Parties: , 220 Tenn. 70 Robert E. STINSON, Petitioner, v. Fred DANIEL, Administrator of the Estate of James Daniel, Respondent.
• Court: Tennessee Supreme Court

Page 7

414 S.W.2d 7

24 McCanless 70, 220 Tenn. 70

Robert E. STINSON, Petitioner, v. Fred DANIEL, Administrator of the Estate of James Daniel, Respondent.

Supreme Court of Tennessee.

March 10, 1967.

Rehearing Denied April 26, 1967.

Foster D. Arnett, Knoxville, R. B. Hailey, Sevierville, Franklin Park, Jefferson City, Arnett & Draper, Knoxville, of counsel, for petitioner.

Joseph W. Wolfenbarger and Daniel & Daniel, Rutledge, for respondent.

OPINION

CHATTIN, Justice.

Fred Daniel, Administrator of the Estate of his son, James Daniel, brought this suit for the death of his son who was killed in a collision between a motorcycle operated by him and an automobile operated by defendant, Robert E. Stinson.

The collision occurred at the intersection of Highway 92, George Street, and U.S. Highway 11-E in Jefferson City on November 16, 1963, at approximately nine P.M. U.S. Highway 11-E is a four-lane highway running east and west with the lanes being divided by a twenty-foot median. George Street, or Highway 92, is a two-lane highway running north and south. The intersection is controlled by traffic lights. That is, traffic lights are suspended in the center of both intersections of the east and west bound lanes of Highway 11-E and George Street.

The declaration alleged plaintiff's son operated a motorcycle westwardly along U.S. Highway 11-E and that the defendant operated his automobile in an eastwardly direction along Highway 11-E. That plaintiff's intestate was operating his motorcycle in the extreme right-hand lane of travel proceeding westwardly, and as he was proceeding through the intersection on a green light, defendant turned his car to the left and negligently proceeded into the west bound lane of Highway 11-E in front of the motorcycle of plaintiff's intestate.

The declaration charged defendant was guilty of negligence in operating the automobile without keeping a proper lookout ahead, without yielding the right-of-way, driving while intoxicated and reckless driving.

Defendant entered a plea of the general issue.

J. P. Scarlett, a Jefferson City Policeman, investigated the accident about forty-five minutes after it occurred. He testified when he arrived at the scene he observed the motorcycle at the curb of the right-hand lane of Highway 11-E proceeding westwardly and defendant's automobile parked at the right curb of George Street, one-half block north of the intersection. He found debris in the west bound lane of Highway 11-E. He testified from his investigation the motorcycle was traveling west on Highway 11-E and the defendant's automobile was traveling north on George Street at the point of Collision. He found no skid marks made by either vehicle.

There is exhibited to his testimony pictures which show the front wheel and suspension of the motorcycle was damaged and damage to the right door of the automobile.

Mrs. Jennie Collins testified she and her son, Donald, went to within a block of the scene of the accident in his car and parked about one hour after the accident had occurred. Donald went to the scene of the accident. When she and her son were about to leave, the defendant opened the car door and entered the car. He asked her to drive him home. She, her son, and the defendant sat in the front seat. She inquired of the defendant his knowledge of the accident and he replied he was involved in the accident and would not have done what he did if he could have avoided it. She further testified she smelled alcohol and was of the opinion defendant was intoxicated.

Donald Collins corroborated his mother as to what defendant had told her about the accident. He further testified the defendant told him, 'he had hit the boy.' He also stated he smelled the odor of alcohol on the defendant and he was intoxicated.

With the introduction of the foregoing testimony and the testimony of plaintiff and one other witness, who had no knowledge as to how the collision occurred, the plaintiff concluded his case.

Defendant moved for a directed verdict, which motion was overruled. Defendant elected to stand upon his motion for a directed verdict and offered no proof.

The jury returned a verdict in the sum of $21,000.00. Defendant filed a motion for a judgment notwithstanding the verdict and a motion for a new trial. Both motions were overruled, however, the trial judge granted a remittitur of $7,500.00. A judgment for $13,500.00 was entered.

Defendant appealed to the Court of Appeals and there complained of the action of the trial judge in overruling his motion for a directed verdict.

The Court of Appeals affirmed the judgment of the trial court.

We have been presented with a petition for certiorari in behalf of the defendant, which we have granted.

The Court of Appeals, in affirming the judgment of the trial court, said:

'Under our law there is a presumption that the deceased was in compliance with the law and was in the exercise of ordinary care at the time of his death. Such arises out of the natural instinct of self-preservation and makes out a prima facie case which prevails until overcome by competent evidence. Oder v. Parks, 34 Tenn.App., 303, 237 S.W. (2d) 571; Tenn. Central R.R. Co. v. Herb, 134 Tenn., 397, 183 S.W. 1011.

'Bearing in mind these principles, we are of the opinion the trial judge properly submitted the case to the jury.

'A review of the testimony and exhibited photographs shows this accident could only have happened while the defendant was either attempting a left turn or proceeding northerly through the intersection. Although there is no proof as to which party had the green light, the jury could have found the deceased was traveling on a green light because of the presumption of the deceased taking due care of his own safety. In either situation, whether defendant was crossing the intersection or turning left, the jury could have also inferred the defendant was negligent by crossing the intersection on a red light or making a left turn without yielding the right-of-way to an approaching vehicle.'

It is our opinion the above reasoning of the Court of Appeals is erroneous.

The presumption that the deceased was exercising due care for his own safety is not evidence of defendant's negligence. Nor does it shift the burden of proof to defendant or authorize a jury to speculate as to the cause of death. Nichols v. Smith, 21 Tenn.App. 478, 111 S.W.2d 911 (1937); Seahorn v. Karr, 35 Tenn.App. 38, 242 S.W.2d 331 (1951).

With respect to the issue of whether defendant was driving his automobile while under the influence of an intoxicant the Court of Appeals said:

'Furthermore, from the testimony of the two witnesses that defendant was intoxicated a short time after the accident, the jury could reasonably have inferred the defendant was operating his car in violation of T.C.A. 59--1031 (Intoxicated or drugged persons prohibited from driving) which would constitute negligence per se. Rice Bros. Auto Company v. Ely, 27 Tenn.App., 81, 178 S.W. (2d) 88; Davis v. Farris, 1 Tenn.App., 144; Tinin v. Siner, 9 Tenn.App., 252.

'It is true civil liability does not result unless a violation of the statute is found to be the proximate cause of the accident. In this case we think the issue of proximate cause was for the jury.'

There is evidence the defendant was intoxicated approximately one hour after the accident. Defendant agrees with the statement of the Court of Appeals the jury was justified in finding the defendant was operating his automobile while under the influence of an intoxicant at the time of the collision. He insists, however, there is no evidence in the record upon which the jury was justified in finding this negligence was the proximate cause of the accident.

A violation of a penal statute is negligence per se and will sustain an action for a civil wrong, but only if it affirmatively appears that such violation was the proximate cause of the injury. Mitchell v. Ketner, 54 Tenn.App. 656, 393 S.W.2d 755 (1964).

Defendant contends it was necessary for the jury to speculate as to the proximate cause of the collision, 'because any number of possible explanations can be derived from the proven facts.' That is, it is entirely consistent with the proven facts to conclude the deceased was operating his motorcycle against a red traffic signal; that he was operating his motorcycle at a high speed without any headlights; or that defendant operated his car against a red light or failed to yield the right-of-way.

It is true a verdict cannot be based on conjecture. Nichols v. Smith, 21 Tenn.App. 478, 111 S.W.2d 911 (1937).

It is true there is no evidence in the record as to whether the traffic lights, which control traffic at the intersection, were operating at the time of the collision. Consequently there is no proof deceased entered the...