Swain v. City of Nashville

• Decision Date: 04 April 1936
• Parties: SWAIN v. CITY OF NASHVILLE.
• Court: Tennessee Supreme Court

Page 405

92 S.W.2d 405

SWAIN v. CITY OF NASHVILLE.

Supreme Court of Tennessee.

April 4, 1936.

Error to Circuit Court, Davidson County; A. B. Neil, Judge.

Action by Antonio Swain, by next friend, Mary Besta, against the city of Nashville. To review a judgment of the Court of Appeals which affirmed a judgment dismissing the suit, plaintiff brings certiorari.

Petition for certiorari overruled and judgment of Court of Appeals and trial court affirmed.

Ewing & Ewing and Jeff McCarn, all of Nashville, for plaintiff in error.

Jack Keefe and R. L. Alexander, Jr., both of Nashville, for defendant in error.

DE HAVEN, Justice.

James H. Swain was accidentally killed while riding in an automobile as a guest of John Inman. The automobile skidded and plunged through the railing of the Church street viaduct, in the city of Nashville, to the railroad yard 30 feet below. The accident took place on November 12, 1933, at about 3:30 a. m., at a point on the viaduct where the roadway somewhat narrows. Street car tracks cross the viaduct, and the left wheels of the automobile were in the south track while the right wheels were near the south, or right-hand, sidewalk. The roadway and track were damp and the automobile was running about 30 miles an hour when it came to the narrowing roadway, which is at the junction of the concrete construction at the west end of the viaduct with the original iron section in the middle. Inman, who was driving the automobile, turned to the left to avoid the shoulder caused by the narrowing roadway. The automobile skidded and mounted the 3¾-inch curb to the sidewalk and plunged through the iron guard rail to the railroad yard below.

The gravamen of the complaint is that the curb to the sidewalk was not high enough to stop the skidding automobile and that the iron guard rail was not strong enough to prevent the automobile from plunging through it. The insistence is that it was the city's duty to have a curb and rail there that would prevent such an accident as did occur.

The city filed a plea of not guilty. The trial judge directed a verdict, at the close of plaintiff's evidence, upon motion of the city, and dismissed the suit. On the appeal of plaintiff to the Court of Appeals that court affirmed the judgment entered in the trial court. Thereupon, petition for certiorari was filed in this court, and was granted and the case set down for argument.

In Gainesboro v. Gore, 131 Tenn. 35, 173 S.W. 442, it was held that to construct and maintain its streets in a reasonably safe condition is a corporate duty, and a city or town is answerable for a breach of that duty. It is the recognized rule, however, that a city or town is not an insurer against accidents upon its streets and sidewalks, but is bound to use only ordinary care to keep them in a reasonably safe condition for persons traveling in the ordinary modes, while exercising reasonable care and caution. Poole v. Jackson, 93 Tenn. 62, 23 S.W. 57.

The erection of a 3¾-inch curb by the city of Nashville on the Church street viaduct, in accordance with the plan adopted by it, cannot be held to subject it to liability for resulting injuries to individuals, unless the curb as planned and erected is so manifestly dangerous that a court can say, upon the facts, as a matter of law, that it is dangerous. Gould v. Topeka, 32 Kan. 485, 4 P. 822, 827, 49 Am.Rep. 496; Teager v. Flemingsburg, 109 Ky. 746, 60 S.W. 718, 53 L.R.A. 791, 95 Am.St.Rep. 400; Healy v. Chicago, 131 Ill.App. 183; McDonald v. Duluth, 93 Minn. 206, 100 N.W. 1102; Madison v. Ross, 3 Ind. 236, 54 Am.Dec. 481; Evansville v. Decker, 84 Ind. 325, 43 Am.Rep. 86; Watters v. Omaha, 76 Neb. 855, 107 N.W. 1007, 110 N.W. 981, 14 Ann. Cas. 750 and note; Gower v. Madisonville, 182 Ky. 89, 206 S.W. 27; 5 McQuillin Mun. Corp. (2d Ed.) § 1981; Annotation, 90 A. L.R. 1519.

In Henson v. Kansas City, 277 Mo. 443, 452, 210 S.W. 13, 16, the court said:

"But the rule [of nonliability] has its limitations; and where the plan adopted by the city is so manifestly dangerous and unsafe, or leaves the street in so obviously a dangerous and unsafe condition that a court can so say as a matter of law, then the city is liable for an injury produced as the proximate cause of such patently dangerous plan."

In Gould v. Topeka, supra, the court said:

"Where a street, as planned or ordered by the governing board of a city, is so manifestly dangerous that a court, upon the facts, could say, as a matter of law,...