Thomas v. Harper

• Decision Date: 26 June 1964
• Citation: 385 S.W.2d 130,53 Tenn.App. 549
• Parties: James THOMAS, Plaintiff in Error, v. John Henry HARPER, b/n/f John W. Harper, Defendant in Error. James THOMAS, Plaintiff in Error, v. John W. HARPER, Defendant in Error.
• Court: Tennessee Court of Appeals

Page 130

385 S.W.2d 130

53 Tenn.App. 549

James THOMAS, Plaintiff in Error, v. John Henry HARPER, b/n/f John W. Harper, Defendant in Error.

James THOMAS, Plaintiff in Error, v. John W. HARPER, Defendant in Error.

Court of Appeals of Tennessee, Middle Section, at Nashville.

June 26, 1964 Certiorari Denied by Supreme Court Oct. 30, 1964.

James Donoho, Hartsville, Solon Fitzpatrick, Carthage, for plaintiff in error.

Richard A. Jones, Nashville, for defendant in error.

HUMPHREYS, Judge.

John Henry Harper, a minor, suing by his father, Johnny W. Harper, as next friend, recovered a judgment against James Thomas, for $10,000.00 for personal injuries. The father also recovered a judgment against James Thomas for $5,000.00 for medical and other expenses, and for loss of his son's services. Plaintiff-in-error has appealed from both judgments and assigned some fourteen errors.

While there was no argument of this appeal on account of illness of counsel for defendants-in-error, counsel for plaintiff-in-error stated that the fifteen errors assigned presented three primary categories of propositions for reversal. These were said to be (1) that the evidence in the case, even when construed in the light most favorable to John Henry established his personal injuries were occasioned by an intervening, independent act on his part, which was the proximate cause of his injuries so that neither he nor his father could recover. (2) That the court erred in instructing the jury with respect to the law on intervening acts of plaintiffs and proximate cause, and committed other harmful errors in charging the jury. (3) The court committed errors in allowing introduction of certain evidence.

In view of these contentions we have reviewed the evidence in accordance with the rule in Poole v. First National Bank of Smyrna, 29 Tenn. 327, 196 S.W.2d 563, which requires we take as true John Henry's testimony, and find the record reflects the following:

On the afternoon of May 6, 1961, at approximately 4:30 P.M., John Henry Harper, approximately twelve years old, rode his bicycle down Claiborne Lane which intersects with the west side of Halltown Road. There he stopped and started up again, and rode into Halltown Road and turned to his right or in a southerly direction on his own side of the road, intending to ride down to a service station where his father worked. Almost immediately after he had entered into Halltown Road and while he was on his right-hand side of the road, plaintiff-in-error ran over him with a taxicab. The proof is that skid marks laid down by the taxicab commenced about the center of Halltown Road, continued over a total length of some 105 feet and veered to the taxicab driver's left--or to the west side of the road--and ended in the gravel on the west side, the same side Claiborne Lane intersects with and the same side John Henry said he was struck on. Skid marks were not laid down over the entire 105 feet. At the point of the intersection of Claiborne Lane and Halltown Road there was a ten foot gap in the skid marks as though plaintiff-in-error had let off his brake at this place. An expert witness, testifying from skid tests made at the place of the accident, said that in his opinion the taxicab was being driven at least forty-five miles per hour at the time. The impact was evidently severe as the boy suffered a compound fracture of both bones below the knee of his left leg, and a compound fracture of the main bone above the knee of the leg. He was cut and abraded about his head and body. He suffered physical pain. He was confined in a hospital for two months and six days. Thereafter, he was confined to his home for a period in excess of a year. He wore a plaster cast from his toes to his chest for approximately seven months. When the first cast was removed a smaller cast was put on the leg for an additional period of time. Following the removal of the cast he was able to get about on crutches. When the crutches were no longer necessary, he was able to hobble about and at the time of the trial had a decided limp. The evidence is his left leg will always remain approximately one and one-half inches shorter than the other and that with this shortening of the leg and the resulting shift of the spine traumatic arthritis of the spine can be expected to develop earlier in life than in the normal aging process.

Johnny W. Harper, the father, incurred doctors' bills, medical bills, and other special damages of approximately $1,700.00. Because of the injuries John Henry Harper missed one full year of school. Whereas prior to the accident he had always been an active, healthy boy, helping his father farm and participating in sports and athletics, since the accident and because of it he has been unable to do these things.

In view of this evidence plaintiff-in-error was not entitled to a directed verdict either on the proposition there was no evidence of negligence on his part or on the proposition John Henry Harper committed an independent, intervening act which caused his injuries and for which plaintiff-in-error would not be liable.

The allegations of negligence in the declarations are that plaintiff-in-error 'drove his taxicab north on Halltown Road so recklessly, negligently and wantonly that he lost control of the operation of the same and ran into, upon and over the plaintiff.'

'Plaintiff avers that at said time and place the defendant was driving at an excessive rate of speed, that he was not keeping a proper lookout ahead and that he was driving his said taxicab negligently and ran the same on the left side of said road when he struck plaintiff with the front of his automobile. * * *'

It cannot be denied this evidence as we have gleaned it from the record in accordance with the admonishments of the Poole rule tends to prove these allegations, and makes out a case for defendants-in-error.

We are aware there is countervailing proof. The plaintiff-in-error had an entirely different theory as to how the collision occurred. His testimony was that a time while he was driving down said road with his automobile under control and keeping a lookout ahead, plaintiff-in-error, John Henry, rode his bicycle suddenly right into the path of his taxicab so that it was impossible for him to avoid the collision. That weeds and bushes along the side of Claiborne Lane at its intersection with Halltown Road made it impossible to see any distance up Claiborne Lane until you got practically to the intersection, so that he had no warning the boy was about to ride out of the lane in front of him and so could do nothing to avoid the collision.

If the jury had accepted and acted on plaintiff-in-error's evidence as thus stated, the twelve year old plaintiff, even if not accountable for contributory negligence on account of his age, could not recover, since his own act would have been the proximate cause of his injury. Coleman v. Byrnes, 34 Tenn.App. 680, 693, 694, 242 S.W.2d 85. However, since the jury rejected this evidence we cannot consider it in passing on the motions for directed verdicts. Poole v. First Natl. Bank of Smyrna, supra.

The second assignment of error is that the verdicts are excessive. We do not think these assignments are good. The actual damages of the father total $1,719.35 and he proved the boy was of some help to him in farming. The testimony as we have outlined it above with respect to the nature of the injuries and the condition in which John Henry is now and will be the rest of his life, certainly indicates that verdict is not so excessive in his behalf as to indicate passion, prejudice, or caprice, or to warrant the exercise of the remittitur power of the Circuit Court or of this Court. It is settled law that the amount of the verdict for personal injuries is primarily for the jury to determine, and, next to the jury, the most competent person to pass upon the matter is the trial judge, and that this Court will not ordinarily interfere unless there is some evidence of passion, prejudice, or unaccountable caprice, or clear abuse of discretion, or the verdict is so far beyond reason as to be a palpable injustice. Gibson County Elec. Membership Corp. v. Hall, 32 Tenn.App. 394, 222 S.W.2d 689; Carman v. Huff, 32 Tenn.App. 687, 227 S.W.2d 780; Flexer v. Crawley, 37 Tenn.App. 639, 269 S.W.2d 598; Board of Mayor & Aldermen of Covington v. Moore, 33 Tenn.App. 561, 232 S.W.2d 410; Kent v. Freeman, 48 Tenn.App. 218, 345 S.W.2d 252.

The third assignment is that the court erred in allowing Lt. Elmer Craig to testify over the objection of plaintiff-in-error as an expert witness on behalf of defendants-in-error in the trial, that he had made certain tests at the place of the collision and in his opinion the defendant's automobile was being driven at least forty-five miles per hour at the time it left the skid marks extending over a total length of some 105 feet. This testimony was objected to on the grounds a proper foundation had not been laid for the giving of the opinion; the road surface was not shown to be the same as at the time the accident happened; and there was a difference in the temperature at the time of the two tests.

The record indicates that at the time of the objection the trial court expressed the opinion the objection went to the weight of the testimony and not the competency of it, and that he would allow the witness to testify, and allow counsel for defendant to attack the opinion by cross-examining the witness with respect to the items which it was claimed rendered his opinion valueless. And this was fully done.

Defendants-in-error defend the action of the trial court in permitting this evidence. Monday v. Millsaps, 37 Tenn.App. 371, 264 S.W.2d 6 (1953); Cheek v. Fox, 7 Tenn.Civ.App. 160; 20 Am.Jur. 805, p. 678; 32 C.J.S. Evidence Sec. 533, p. 236; Vol. 9C Blashfield Cyclopedia of Automobile Law and Practice Sec. 6238, p. 416.

In Monday v. Millsaps, this Court speaking through one of its...