Sutherland v. Keene

• Decision Date: 07 January 1947
• Citation: 203 S.W.2d 917,29 Tenn.App. 303
• Parties: SUTHERLAND v. KEENE. SAME v. WILSON.
• Court: Tennessee Court of Appeals

203 S.W.2d 917

29 Tenn.App. 303

SUTHERLAND v. KEENE.

SAME v. WILSON.

Court of Appeals of Tennessee, Eastern Section.

January 7, 1947

Certiorari Denied by Supreme Court June 26, 1947.

Appeal in Error from Circuit Court, Washington County; D. A. Vines Judge.

Actions by Jack Keene and Ambers Wilson against Mrs. F. M. Sutherland to recover for personal injuries and property damage sustained in an automobile collision, wherein defendant filed cross declarations against the respective plaintiffs to recover for personal injuries and property damage. The cases were tried together and resulted in verdicts in favor of the respective plaintiffs, one of which was reduced by remittitur, and from judgment entered on such verdicts defendant appeals in error.

Judgment affirmed.

Cox, Taylor, Epps & Miller, of Johnson City for plaintiffs in error.

Simmonds & Bowman and Nelson Swan, all of Johnson City, for defendant in error.

McAMIS Judge.

In these two cases, growing out of an automobile collision and tried together below, the defendant, Mrs. F. M. Sutherland, has appealed in error and assigned errors raising as the principal grounds for reversal the kinship of one of the jurors to plaintiff, Jack Keene, and that the jury improperly discussed, and were improperly influenced by, the possibility that Mrs. Sutherland carried public liability insurance on her automobile. Other assignments raise the question that the verdict, even as reduced by remittitur suggested by the trial judge, is excessive; that the undisputed proof shows that plaintiff Keene was guilty of proximate contributory negligence and that the defendant was guilty of no negligence; also that the trial judge concurred in the verdict notwithstanding a finding by him that Keene was guilty of contributory negligence and improperly undertook to compensate for the caprice and sympathy of the jury by suggesting a remittitur.

On April 15, 1946 a collision occurred at the intersection of Buffalo and Pine Streets in Johnson City between the automobile of Mrs. Sutherland, being driven by her in a westerly direction on Pine Street, and the taxicab of Ambers Wilson, one of the plaintiffs, being driven by plaintiff Jack Keene in a northerly direction on Buffalo Street.

Keene instituted suit against Mrs. Sutherland to recover for personal injuries and a separate action was instituted by Wilson, as the owner of the taxicab, to recover for damages to his taxicab. In each case Mrs. Sutherland filed a cross declaration against the respective plaintiffs to recover for personal injuries, and for property damage to her automobile. In the Keene case the jury returned a verdict for $10,000 and in the Wilson case a verdict for $300 representing damages to his taxicab.

Mrs. Sutherland moved for a new trial in each case. Her motion in the Wilson case was overruled, and in the Keene case her motion for a new trial was overruled upon the condition that plaintiff accept a remittitur of $4,000. Keene accepted the suggested remittitur and judgment was rendered for $6,000 from which Keene did not appeal.

Under the facts to be outlined, we think there was no error in submitting to the jury the question of the negligence of the drivers of the two vehicles and that it was for the jury to decide whether any negligence on the part of Keene was the proximate or only a remote cause of the collision.

Keene testified that, as he approached the intersection from the south, he saw a child toss an object from the sidewalk at the northwest corner of the intersection into the street and that his attention was mainly directed to the child because he thought the child was about to get into the street in front of his cab; that he thought he was driving between 12 and twenty miles per hour; and that he did not see Mrs. Sutherland's car until he had entered the intersection when it suddenly appeared from his right and struck the taxicab about midway between the two fenders. The cab continued northwardly on Buffalo Street for 80 feet or more and overturned. Plaintiff's witness, A. G. Roark, estimated the speed of the cab at approximately 25 miles per hour.

It is not disputed that stop signs were located on Pine Street at the Buffalo Street intersection and that, by city ordinance, Pine Street was a stop street.

Plaintiffs' witness, Miss Goldie Phillips, testified that she was on the porch of a house at the corner of Buffalo and Pine Streets; that she saw Mrs. Sutherland approach the intersection driving westwardly on Pine Street; that she was making a speed of from 30 to 35 miles per hour as she entered the intersection and that she did not observe the stop sign on Pine Street. On cross-examination she admitted that on the afternoon of the accident she had told one of Mrs. Sutherland's attorneys that she did not see the accident and made the same statement to other persons but said she made these statements because she intended to go to her home in Kentucky and because she wanted to avoid being summoned as a witness.

A. G. Roark, another witness for plaintiffs, testified that he was walking north on Buffalo Street and had just stepped off the sidewalk at the southwesterly corner of the intersection when he saw the Sutherland car approaching from the east going 'real fast'; that he then stepped back on the sidewalk; that he did not see Mrs. Sutherland stop at the stop sign and that she continued into the intersection and her ca struck the taxicab in the right side between the front and rear fenders.

Mrs. Sutherland testified that she stopped at the stop sign on Pine Street and continued into the intersection at about seven miles per hour after looking in both directions and seeing no cars approaching; that after she got into the intersection she looked south on Buffalo and saw the taxicab approaching at a high rate of speed; that the taxicab undertook to dodge in front of her car to avoid a collision but could not do so and struck the left front of her car. She estimated the speed of the taxicab at 50 miles per hour. It is apparent from what we have said that there is an irreconcilable conflict in the testimony. The speed limit, under the governing city ordinance, at the intersection was 15 miles per hour and there is material evidence that Mrs. Sutherland was exceeding the speed limit and that she failed to observed the stop sign. Contradictory statements made by the witness, Miss Phillips, did not destroy her testimony but went only to its weight and if it be conceded that plaintiff's testimony that he was going between 12 and 20 miles per hour constitutes an admission that he was going more than 15 miles per hour, the prevailing speed limit still it was a question for the jury to determine whether this was a proximate cause of the collision, assuming as we must, that the jury found that Mrs. Sutherland was traveling at a speed of 30 to 35 miles per hour and continued into the intersection without observing the stop sign.

It is settled by numerous decisions of the Supreme Court and of this court that where the undisputed evidence shows that the plaintiff has violated a traffic regulation, it is still a question for the jury as to whether his contributory negligence in doing so was a proximate or remote cause of his injuries. Among other cases see Holt v. Walsh, 180 Tenn. 307, 174 S.W.2d 657 and numerous cases there cited in support of the rule, including Anderson v. Carter, 22 Tenn.App. 118, 118 S.W.2d 891, here relied upon by plaintiffs.

But it is argued with much zeal and ability that, even if supported by material evidence, the judgments should be reversed and a new trial granted because the juror Linville is related to the plaintiff Keene within the sixth degree as computed according to the civil law. Code, Section 10007 provides: 'No person can act as a juror in any case in which he is interested, or when either of the parties is connected with him by affinity or consanguinity, within the sixth degree, computing by the civil law, except by consent of all the parties.'

After a hearing on this question while considering defendant's motion for a new trial, the trial judge determined that Linville was related to Keene within the seventh degree but not within the prohibited sixth degree. We here copy the chart which both parties agree correctly sets forth the relationship of Linville and Keene through their common ancestors, Enoch and Polly Keene.

Enoch and Polly Keene (Common Ancestors)

William Keene (Son)

Cora Linville (Grandson)

I. A. Linville (Great Grandson)

James Keene (Son)

Chas. Keene (Grandson)

Plaintiff Keene (Great grandson)

In Hume v. Commercial Bank, 10 Lea 1, 5, 78 Tenn. 1, 5, 43 Am.Rep. 290, it was said: 'The statutes, both in the case of judges and jurors, require that the disqualifying relationship be ascertained by computing according to the civil law, that is by counting from one party up to the common ancestor and then down to the other.'

However, we do not have a case in this State to guide us as to how the relationship shall be computed, i. e., whether, as the learned trial judge determined in this case, only one of the parties whose relationship is to be determined shall be counted as a separate generation or whether the common ancestors shall be considered both in ascending and descending. The rule elsewhere seems to be to consider the common ancestor as a single removal or to leave out of consideration one of the parties whose relationship is to be determined. We quote:

'Every generation in lineal direct consanguinity constitutes a different degree reckoning either upward or downward. The difference in the method of the common and civil law in the computation of degrees exists only in relation to collateral consanguinity.

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