Street v. Calvert

• Citation: 541 S.W.2d 576
• Parties: Elliot Crawford STREET, Administrator of the Estate of Doris C. Street, Deceased, Petitioner, v. David CALVERT and Joe Calvert, Respondents.
• Decision Date: 06 July 1976
• Court: Supreme Court of Tennessee

Page 576

541 S.W.2d 576

Elliot Crawford STREET, Administrator of the Estate of Doris C. Street, Deceased, Petitioner, v. David CALVERT and Joe Calvert, Respondents.

Supreme Court of Tennessee.

July 6, 1976.

Rehearing Denied Sept. 27, 1976.

Jack S. Magids, Krivcher & Magids, Memphis, for petitioner.

John J. Thomason, Thomason, Crawford & Hendrix, Robert V. Redding, Memphis, for respondents.

OPINION

FONES, Justice.

We granted the writ of certiorari in this case and expressly limited consideration to the following: (1) the effect of the failure of the trial judge to instruct on the doctrines of discovered peril and last clear chance; (2) is the posture of this case such that this Court may properly consider the adoption of a rule of comparative negligence; (3) the propriety of adopting such a rule; and (4) the type of comparative negligence which should be adopted.

I.

Doris C. Street was walking across Hale Road to her mailbox on the opposite side from her residence when she was struck by an automobile driven by David Calvert and owned by his father Joe Calvert. She sustained serious injuries that resulted in her death more than seven (7) months after the accident, during which time she was unable to relate what occurred.

A jury verdict for defendants was approved by the trial judge and the Court of Appeals affirmed.

The only error we find was the failure of the trial judge to give an instruction to the jury on the doctrine of last clear chance, an exception to the contributory negligence rule, recognized in various forms by the courts of Tennessee since before the turn of the century. In our opinion the proof most favorable to plaintiff's theory embraced all of the essential elements of discovered peril. The probative value of that proof was a proper question for the jury.

II.

The essential evidence necessary to relate for our consideration of the case follows.

Mrs. Street's house was on the south side and her mailbox was on the north side of Hale Road, a street twenty-two (22) feet wide with no sidewalks, curbs or gutters. Approaching from the east, visibility was unobstructed for at least six hundred (600) feet from the accident scene; and although it was raining lightly at the time of the accident, visibility was not affected by the precipitation. Mrs. Street returned from a quilting party at church about 3:15 p.m. in the automobile of Mrs. Maude Johnson, who testified that she stopped in front of the Street residence and observed Mrs. Street exit the car and start up the steps toward her front door. Mrs. Johnson then drove away from the Street residence in the eastbound lane of Hale Road and did not observe any cars coming from the east. Another witness testified that she saw Mrs. Johnson depart two (2) or three (3) minutes before the accident occurred. It was virtually undisputed that Mrs. Street was only one (1) or two (2) feet from the north edge of the pavement, directly in front of her mailbox, when she was struck by the defendants' vehicle at the right front headlight.

Two witnesses testified that there was a single skid mark, one hundred sixty (160) feet in total length, beginning five (5) to eight (8) feet west of a neighbors mailbox, running in a straight line, but with an angle to the right, so that it went off the north edge of the pavement beyond Mrs. Street's mailbox. On the day of the accident the distance was estimated, by the width of the one hundred (100) foot lots on Hale, to be one hundred fifty-five (155) to one hundred sixty (160) feet. Months later, after the mark was not visible, Mr. Whitson and his son measured the distance and recorded same on paper, exhibit fifteen (15) in the record. According to that measurement, the skid mark began eighty-one (81) feet east of Mrs. Street's mailbox and left the north edge of the pavement seventy-eight (78) feet west of her mailbox. At the beginning point the skid mark was shown to be three (3) feet from the north edge of the pavement. Its northward angle had reduced in distance from the north edge of the pavement to fifteen (15) inches as it passed the mailbox where Mrs. Street was struck.

There was testimony that a few days after the accident, David Calvert said that he saw Mrs. Street 'on top of the steps,' or 'on the walk.' While there was no sidewalk paralleling Hale Road, a paved walk with three steps near the edge of the street extended from the street to the front of the Street residence.

Defendants denied that any skid marks were there the next day, and denied that David made any statement about seeing Mrs. Street on the walk. It was not disputed that at least one of the right wheels on the Calvert vehicle was off the north side of the pavement when the car came to rest.

Calvert testified that he was driving his father's vehicle thirty (30) miles per hour in a thirty-five (35) mile zone because the roads were slick; that he first saw Mrs. Street when she stepped 'from behind the car to the middle of the road' heading toward her mailbox. At that time he testified he was approximately ninety (90) feet away and that he attempted to stop his car; that all four wheels 'stopped turning,' or 'locked,' and when he attempted to steer his car to the left to avoid Mrs. Street, the car did not react but continued in a straight line; that he did not blow the horn because he was in the process of turning left to pass behind her; that had his car turned he would have missed Mrs. Street and the car parked in front of her house. He testified, at another stage of the trial, that when Mrs. Street reached the center of Hale Road he was ninety (90) feet away. He said that she had her right hand on top of her head and at all times was looking straight ahead and walking toward her mailbox.

III.

The origin of the last clear chance doctrine is traced to Davies v. Mann, 10 M & W 546, 152 Eng.Rep. 588 (1842). In the intervening years it has been the most frequently applied modification of the strict rule of contributory negligence, but its application has been fraught with confusion arising from the widely varying statements of the essential elements of the rule and the search for a lucid rationale.

In Tennessee, Todd v. Railroad, 135 Tenn. 92, 185 S.W. 62 (1915), has made a substantial contribution to the conflicting decisions that now exist in our reported cases.

Todd was struck by a railroad car at a public crossing. Carrying a bag of corn he walked to the highway crossing and found the way obstructed by defendant's cars, engaged in switching operations. After some delay he crossed over the first, second and third tracks, but put his sack of corn down on the third track and took a position on the end of the cross ties on the third track to await clearance on the fourth track. He was engaged in conversation with another man looking continuously south for twenty (20) minutes. His attention was apparently further riveted to the south, by another freight train that approached from that direction on the second track, as he continued to wait. Thereupon, several cars were backed from the north down the third track and the rear car struck Todd on the right hip and knocked him to the ground causing him injury. He did not see or hear the train approaching. There was no brakeman, and there was no evidence that the enginemen saw Todd.

Thus, the court was presented with an inattentive plaintiff and a defendant in an undiscovered, but in the exercise of reasonable care, discoverable situation.

The trial judge directed a verdict for defendant railroad; the Court of Appeals held that the case should have been submitted to the jury. The Supreme Court agreed with the trial judge and dismissed the suit.

The court held that Todd was guilty of gross negligence as a matter of law, with the result that Todd could only avail himself of the 'discovered peril' version of last clear chance.

'He was guilty of gross negligence; he knew that he could not cross over and continue his journey as a traveler on the highway; he stood in a dangerous place with his back turned towards a source of danger for an unreasonable time and disregarded the increase of dangers about him. The above principle is itself subject to a modification likewise grafted by the law for reasons of public policy. A defendant who is grossly negligent and reckless to the point of acting in disregard of the rights of others or of imputed willfulness cannot avail himself of a plea of plaintiff's contributory negligence; nor may a plaintiff who is acting so recklessly as to be in utter disregard of his own safety to be heard to invoke the application of the principle above discussed. The law will refuse to impose on the defendant in his behalf any other than the doctrine of actually discovered peril. His negligence is considered to be proximate in the chain of causation.

A number of cases reach this result, whether based on this reasoning or not.' 135 Tenn. at 108, 109, 185 S.W. at 66.

Earlier in the opinion the Court cited with approval Railway v. Hanyes, 112 Tenn. 712, 81 S.W. 374 (1904) which may be said to support a version of the doctrine of last clear chance now generally referred to as discoverable peril. The Court's comment was as follows:

'Quite as common and yet a more apt illustration is that of a motorman of a street car bound to vigilance with regard to the safety of those travelers who are making use of the public street on which his car is operated, and in such case this court has held that actual discovery of plaintiff's peril is not necessary to convict the defendant company of negligence, but it is bound by what its motorman could have discovered in the exercise of ordinary care. Railway v. Haynes, 112 Tenn. 736, 81 S.W. 374. And see, generally, 2 Nellis on Street Railways (2d Ed.) section 462.' 135 Tenn. at 107, 108, 185 S.W. at 65.

In our opinion the holding of Todd is that Tennessee recognizes discovered peril and discoverable peril at least where defendant is engaged in...