Tennessee Coach Co. v. Young

• Decision Date: 29 September 1934
• Citation: 80 S.W.2d 107,18 Tenn.App. 592
• Parties: TENNESSEE COACH CO. v. YOUNG.
• Court: Tennessee Court of Appeals

80 S.W.2d 107

18 Tenn.App. 592

TENNESSEE COACH CO. v. YOUNG.

Court of Appeals of Tennessee, Middle Section.

September 29, 1934

Certiorari Denied by Supreme Court March 9, 1935.

Appeal in Error from Circuit Court, Davidson County; E. F. Langford Judge.

Action by W. B. Young against the Tennessee Coach Company. Judgment for plaintiff, and defendant appeals in error.

Affirmed.

W. M Fuqua and Wm. D. Dodson, both of Nashville, for plaintiff in error Coach Co.

Walker & Hooker, of Nashville, and Malcolm C. Hill, of Sparta, for defendant in error Young.

CROWNOVER Judge.

This was an action for damages for personal injuries sustained by Dr. Young while riding as a passenger for hire in a bus owned by defendant Coach Company, as a result of the bus' skidding and overturning on the highway.

Defendant pleaded not guilty.

The case was tried by the judge and a jury. At the conclusion of all the evidence defendant moved for a directed verdict on the grounds that there was no material evidence to support a verdict and no negligence shown on the part of defendant which motion was overruled. The jury returned a verdict of $5,000 in favor of plaintiff.

Motion for a new trial having been overruled, defendant appealed in error to this court and has assigned errors, which are, in substance, as follows:

(1) There was no evidence to support the verdict and no evidence showing negligence on the part of defendant Coach Company; therefore the court erred in refusing to direct a verdict for defendant.

(2) The court erred in overruling defendant's motion for a mistrial, based on the introduction by plaintiff of testimony showing compromise and settlement of certain witnesses' claims against defendant.

(3) The court erred in declining to charge defendant's theory of the case, the same being special request No. 1, which stated, in part, "that while so operating said bus under said circumstances, there suddenly appeared on the left shoulder of the road a mule, in about twenty or thirty feet in front of the bus, which mule was running across the road in front of the path of the bus, and which mule had not been seen by the driver of the bus and could not have been seen by the driver of the bus and could not have been seen by the exercise of due and proper care before that time, the said driver believing that the bus would strike the mule and cause a wreck, with probable injuries to the passengers, and in an effort to prevent such an accident, said driver of the bus cut the bus slightly to the right and applied his brakes and avoided striking the mule, but the bus skidded around and finally partly capsized in a ditch," as a result of which plaintiff was injured, and if the jury should believe this theory the defendant would not be guilty of negligence and there would be no liability.

(4) The court erred in refusing to charge defendant's special request No. 2, which was as follows:

"I further charge you, gentlemen of the jury, that it was the duty of the defendant's driver in operating said bus along said highway, to keep a lookout immediately on the road ahead, and in the exercise of due care to observe within a reasonable distance of the road, any object or objects which might be seen if they could by the exercise of due care be seen, and which might be reasonably calculated to obstruct the safe operation of said bus, but the jury must take into consideration the weather conditions, the fact that it was night time and also the fact that there was rain and mist on the windshield of the bus, and all of the facts and circumstances in determining whether or not the driver of defendant's bus could, by the exercise of due care have seen said mule in time to have slowed down or stopped and prevented said accident."

(5) The court erred in charging the jury as follows:

"Where there is a law (referring to vol. 1, chapter 255, Private Acts of Tennessee 1927, Rutherford County, Tennessee), gentlemen, prescribing that no one shall permit stock to run at large in the county, a presumption would arise to the user of the road that there would not be on the highway loose stock; but that presumption may be overturned and rebutted not only by facts and conditions as may have developed under the testimony in the case, further, any observation of those who are operating busses in the community in question, where there is such a provision as to stock running at large, and if the driver of a bus knew or in the exercise of the highest degree of care should have known that instead of that law being complied with and lived up to by the community in general, and as a matter of fact he did know or should reasonably expect there would be stock running at large on the highway, why then the law itself can be of no avail and still he would have to exercise the highest degree of care in anticipating those things that he knew of or should know of."

(6) The court erred in refusing to charge defendant's special request No. 5, which was as follows:

"You are further charged that a stock law was in force at the time and place the accident occurred, prohibiting stock from running at large, and that said mule was on the highway in violation of said law, and defendant was not required to be on the lookout for loose animals on the highway, and before you can find for the plaintiff, if the defendant is otherwise not liable, you must believe from the evidence that the defendant saw said mule at such a place in the road as he would likely collide with the bus, or by the exercise of proper care could have seen him, and saw said mule or could have seen him in time to have prevented the accident by the exercise of proper care, with the use of the means at hand."

(7) The court erred in charging the jury as follows:

"*** if you can not reconcile the testimony of the witnesses, then it is up to you to do just such with the testimony of any witness as you think should be done under all the facts and circumstances of the case."

(8) The court erred in charging the jury as follows:

"The degree of care would be exacted and required of the operator of a bus that is the highest. With reference to the condition of the roadway; it might be an act of negligence to drive a car at fifteen miles or twenty miles when the road is in one condition, while on the other hand to drive it at even a faster rate of speed or slower rate of speed when the road is not in such condition would not be an act of negligence; so, in determining as to whether or not the highest degree of care was exercised by the operator of the transportation company, you will take into consideration all the conditions and the surroundings as shown by the proof at the time, and considering all these elements, and things in the way, and the manner and method of operation, the condition of the highway at the time and the condition of the elements, you will reach the conclusion and determine as to whether or not the driver was exercising that high degree of care that was imposed on him by law in the transportation of passengers."

(9) The charge was confusing, contradictory, and misleading to the jury, in that the portion set out in assignment of error No. 5 is conflicting within itself when considered together with the following portion of the charge:

"The court further charges you that the defendant could not under the facts of this case have anticipated that a mule would run out from the side of the road in front of the bus, and if you find that the mule did suddenly run out in front of the bus, as aforesaid, and that at the time the chauffeur was in the exercise of high degree of care, and he then exercised proper care to prevent the accident and failed to do so, then the defendant would not be liable."

(10) The verdict is so excessive as to evince prejudice, passion, and caprice on the part of the jury.

The plaintiff in error, Tennessee Coach Company, a corporation, is a common carrier of passengers, and in that business operates motorbuses between Knoxville and Nashville.

On November 17, 1931, Dr. W. B. Young purchased a ticket at Sparta for Nashville and became a passenger for hire on defendant's bus.

At about 6 o'clock in the evening the bus had reached a point about five or six miles east of Murfreesboro. The road at this point is 18 feet wide with shoulders about 4 or 5 feet wide, and curves slightly to the right. It was dark and drizzling rain and the road was slippery. The windshield was covered with mist except for a small space of about 10 inches kept clear by the windshield wiper. A mule ran across the highway in front of the bus. The driver applied the brakes, the bus skidded and went off the road and turned over, and the plaintiff was injured.

1. It is the contention of the plaintiff that the mule was running on the left shoulder of the road, in the same direction as the bus, and was seen by the driver when 100 feet away, or should have been seen by the exercise of the highest degree of care; that the driver did not check the speed of the bus but continued to drive at the rate of about 35 to 50 miles an hour on an asphalt road known to the driver to be slippery when wet; that when the bus was about 25 feet behind the mule, the mule, as might have been anticipated by the driver, turned and trotted across the road in front of the bus; that the bus was then about 20 to 25 feet from the mule, the driver applied the brakes, and the bus skidded, ran off the road, and turned over, and plaintiff was injured.

The defendant contends that the bus was being operated on its proper side of the road and under reasonable control, and had been so operated for several miles; that the mule suddenly appeared on the left shoulder, trotting across the road about 20 or 25 feet in front of the...