Templeton v. Quarles

• Decision Date: 26 July 1963
• Citation: 374 S.W.2d 654,52 Tenn.App. 419
• Parties: A. K. TEMPLETON, Administrator of the Estate of Robert James Templeton, Deceased, Plaintiff--Defendant-in-Error, v. Benton L. QUARLES and Kenneth P. Quarles, Defendants--Plaintiffs-in-Error.
• Court: Tennessee Court of Appeals

Page 654

374 S.W.2d 654

52 Tenn.App. 419

A. K. TEMPLETON, Administrator of the Estate of Robert James Templeton, Deceased, Plaintiff--Defendant-in-Error, v. Benton L. QUARLES and Kenneth P. Quarles Defendants--Plaintiffs-in-Error.

Court of Appeals of Tennessee, Middle Section.

July 26, 1963 Certiorari Denied by Supreme Court Jan. 8, 1964.

Paul D. Kelly, Jr., Jasper, for plaintiffs in error.

Frank C. Gorrell, Nashville, Shelby Haywood, Lewisburg, Sam Raulston, Jasper, for defendant in error.

CHATTIN, Judge.

This suit was instituted by the plaintiff, A. K. Templeton, Administrator of the Estate of Robert James Templeton, Deceased, in the Circuit Court of Marion County, Tennessee, against the defendants, Benton L. Quarles and Kenneth P. Quarles, for the wrongful death of the plaintiff's intestate, Robert James Templeton, Deceased. Benton L. Quarles was at the time of the accident operating an automobile with the permission of its owner, the defendant, Kenneth P. Quarles. The case was tried to a jury before the Honorable A. F. Sloan, Circuit Judge, at Jasper, Tennessee, and resulted in a verdict for the plaintiff in the sum of Twenty-Five Thousand ($25,000.00) Dollars.

Plaintiff's declaration is in four counts.

The first count charges the accident occurred on November 11, 1960, on U. S. Highway 41 some three and one-half miles south of Jasper, Tennessee, at which time plaintiff's intestate was crossing the highway on foot. That as a result of the gross, careless and wanton negligence of the defendant, Benton L. Quarles, in driving the automobile at an excessive rate of speed without keeping a proper lookout ahead, 'or upon seeing him there was no reason why the defendant could not have avoided hitting him had the defendant been driving the station wagon in a safe and prudent manner,' the defendant struck plaintiff's intestate inflicting serious injuries to his body from which he died within a very few minutes.

The second count charges the defendant driver violated Section 59-852 T.C.A., our speed limit statute.

The third count charges the defendant driver with the violation of Section 59-836 T.C.A., which provides that drivers of vehicles shall exercise due care to avoid colliding with a pedestrian upon any roadway.

The fourth count charges the defendant driver with reckless driving, Section 59-858 T.C.A.

To the declaration, the defendants filed a plea of the general issue.

At the conclusion of plaintiff's proof the defendants moved the court for a directed verdict. The court directed a verdict as to the second count charging a violation of the speed limit statute, and overruled defendants' motion in all other respects.

The defendants did not stand upon their motion but introduced as witnesses the defendant, Benton L. Quarles, and his brother, Carl Quarles, who was riding in the automobile driven by defendant.

At the conclusion of all the proof, the defendants renewed their motion for a directed verdict. The trial judge sustained the motion as to the charge of gross negligence on the part of the defendants and overruled the motion otherwise.

As stated, the jury returned a verdict for the plaintiff. Judgment was entered thereupon. Defendants filed a motion for a new trial which was overruled in all respects, except as to the excessiveness of the verdict. The trial judge sustained this ground and ordered a remittitur of Ten Thousand ($10,000.00) Dollars. The plaintiff accepted the remittitur under protest and appealed to this Court, assigning as error the action of the court in suggesting the remittitur. The defendants have perfected an appeal and have assigned five assignments of error.

We will consider defendants' assignments first.

Their first and second assignments challenge the action of the trial judge in failing to direct a verdict for them at the conclusion of all the proof. It is the insistence of defendants the trial judge should have directed a verdict for them, because there was no evidence of actionable negligence on their part, and because the undisputed testimony showed plaintiff's intestate was guilty of negligence as a matter of law, which was a direct and proximate cause of his death.

This Court, in considering the question of whether a verdict should have been directed for the defendants, is bound by the rule that, 'we must look to all the evidence, take the evidence for plaintiff as true, allow all reasonable inferences in his favor, and disregard all countervailing evidence.' Hooper v. Starkey, 41 Tenn.App. 633, 297 S.W.2d 948; Goodrich v. Morgan, 40 Tenn.App. 342, 291 S.W.2d 610.

The accident happened between eight and nine P.M., on November 11, 1960, on Highway 41 some three and one-half miles south of Jasper, Tennessee, in front of a restaurant owned by Ross Payne. This highway is a heavily traveled thoroughfare between Nashville and Chattanooga. It is a paved highway thirty-six feet wide and divided into three lanes. It runs generally north and south. Payne's restaurant is on the east side of the highway and directly across the highway on the west side is a laundromat and a souvenir shop. Both of these buildings have large neon signs which light the highway at the scene of the accident.

Deceased, forty-six years of age, was employed as a truck driver for the Wilson Truck Line of Nashville, Tennessee. His regular run was from Nashville to Chattanooga. He was in good physical condition. On the night of the accident, he was on his way to Chattanooga. The lights on his truck failed and he parked his truck on the west side and directly across the highway from Payne's restaurant. He crossed the highway to the restaurant to call for a mechanic. But there was no telephone in the restaurant so he re-crossed the highway and called the mechanic. He returned to the restaurant and when the mechanic came he again crossed the highway to the truck. After the lights were repaired, he returned to the restaurant and borrowed a pencil and returned to the truck to sign the service statement. He was on his way back to the restaurant when the fatal accident occurred. The defendant, Benton L. Quarles, was traveling north in a 1956 Chevrolet station wagon in the east lane of the three lane highway. Mr. Carl Quarles was sitting in the front seat with Benton. The Deceased ran across the highway and in front of the station wagon. All the proof shows he was hit by the right front fender of the station wagon and in the east lane of the highway.

It is undisputed in the record the defendant, driver, was traveling up a grade and that the highway is straight for approximately a quarter of a mile from the restaurant to the flat or bottom of the hill.

Ross Payne, the owner of the restaurant, testified he was sitting inside the building next to the front door. He heard 'a holler' and thought someone had hit a dog. He ran outside and found Deceased. He then went across the highway and called an ambulance. He testified when he went out the door there was no traffic on the road.

He further testified the lights on his restaurant and on the buildings across the highway lighted the highway at the scene of the accident.

He stated he found the Deceased's glasses about two feet inside the east lane of the highway south of the front of the restaurant; his hat about ten feet north of his glasses; his body about one hundred eighteen feet north of his glasses; and one of his shoes, still tied, about sixty-five feet north of his body. He further testified he saw skid marks in the east lane which started just above the hat and veered to the left to the car driven by the defendant, the front end of which came to rest in the middle lane.

Joe Cash testified prior to the accident he was traveling south on the highway and as he approached the scene he saw the Deceased in a 'trot' going across the highway from the restaurant to the truck. He drove a few hundred yards south of the restaurant and turned around and went to the restaurant. As he was going into the restaurant he heard the Deceased slam the door on the truck and start running across the highway and when he had just got inside the building he heard tires 'squealing' and then an impact. He turned and ran out the door and saw the body flying through the air.

Jack Murray, a state highway trooper, testified he went to the scene that night and stepped off the skid marks which were in the outside lane traveling north. The skid marks were approximately ninety-six feet in length.

Mrs. Ross Payne testified she was standing near a window in the restaurant. She heard the impact and saw the Deceased's body in the air. She stated there were no other cars on the highway at the time and none appeared on the scene until about five or ten minutes after the tragedy.

The plaintiff, A. K. Templeton, testified about a week after the accident he asked Benton Quarles how the accident happened and he answered he did not know; that he did not see the Deceased until he hit him.

Both Benton Quarles and his brother, Carl, testified they had been to the Brendalene Motel to repair a television set. They were returning to Jasper driving in the east lane of the highway at about fifty miles an hour. They met a car traveling in the opposite direction, and just after the car passed they saw the Deceased directly in front of their car running. Benton, the driver, immediately put down his brakes but did not have time to avoid striking the Deceased.

We think there was ample evidence from which the jury could find the driver guilty of excessive speed under the circumstances prevailing at the time.

As stated, the undisputed proof is the Deceased was knocked by the impact some one hundred and eighteen feet. His body was seen flying through the air. The skid marks laid down by the station wagon were ninety-six feet in length. The impact was so great one of his shoes was found some sixty-five feet from his body still tied.

'Direct testimony is not essential to warrant a finding of...