Townsley v. Yellow Cab Co.

• Citation: 237 S.W. 58
• Parties: TOWNSLEY v. YELLOW CAB CO.
• Decision Date: 21 January 1922
• Court: Tennessee Supreme Court

Page 58

237 S.W. 58

TOWNSLEY v. YELLOW CAB CO.

Supreme Court of Tennessee.

January 21, 1922.

Certiorari to Court of Civil Appeals.

Action by Chas. J. Townsley, as administrator of Margaret Townsley, deceased, against the Yellow Cab Company. Judgment for defendant on a directed verdict was affirmed by the Court of Civil Appeals, and plaintiff brings certiorari. Reversed, and case remanded for new trial.

Jos. H. Norville and Monteverde & Glanklar, all of Memphis, for plaintiff.

John D. Martin and Andrew J. Donelson, both of Memphis, for defendant.

GREEN, J.

This suit was brought by the plaintiff, as administrator of his daughter, Margaret Townsley, to recover damages for her death which resulted from being run over by a taxicab belonging to the defendant. A motion for a directed verdict in favor of the defendant was sustained by the trial court. This judgment was affirmed by the Court of Civil Appeals. We granted plaintiff's petition for certiorari and the case has been heard here.

The deceased, Margaret Townsley, was 11 years old, and lived with her mother on Poplar street in the city of Memphis. On the day she was hurt the child had gone to visit a neighbor, Mary Volt, another little girl about 10 years of age, who lived across the street.

Mary Volt accompanied Margaret Townsley when the latter started to return home. The two children undertook to cross Poplar street together from the south side to the north side. There was a double car track on the street at this point, and the children in crossing had passed over the south track and were on the north track when they saw a taxicab beyond the north track, nearly upon them. They stopped, and the chauffeur saw them and brought the car to a stop, or nearly to a stop. Just what the distance was between the taxicab and the little girls when they all paused is not clear on the record. Mary Volt was the only eyewitness of the accident who was introduced. The distance certainly, however, was not great.

After the children stopped the chauffeur put his car in motion, and at about the same time, perhaps a little later, Margaret Townsley undertook to run across in front of the car. Mary Volt remained standing. Margaret Townsley was unable to clear the car before it struck her, and was knocked down and received injuries from which she died. The accident happened late in the afternoon, about dusk.

The question presented upon the record is whether the trial judge was justified in directing a verdict in favor of the defendant upon these facts.

Years ago, in Whirley v. Whiteman, 1 Head. (38 Tenn.) 610, this court expressly approved Robinson v. Cone, 22 Vt. 213, 54 Am. Dec. 67, to the effect that children of tender years are entitled to a degree of care from others proportioned to their inability to foresee and avoid the perils which they may encounter, and holding that —

"What would be but ordinary neglect, in regard to one whom the defendant supposed a person of full age and capacity, would be gross neglect as to a child, or one known to be incapable of escaping danger."

Such is the general rule. 20 R. C. L. 37; 29 Cyc. 429. A statement of an Ohio court in this connection is frequently quoted:

"Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them, must calculate upon this, and take precaution accordingly." Ficker v. Cleveland, etc., R. Co., 7 Ohio N. P. 600.

This language has been adopted by the United States Circuit Court of Appeals for this circuit in Camden v. Broom, 139 Fed. 595, 71 C. C. A. 641, in Deputy v. Kimmell, 73 W. Va. 595, 80 S. E. 919, L. R. A. ...