Tri-State Transit Co. of Louisiana, Inc. v. Duffey

• Decision Date: 15 November 1940
• Citation: 173 S.W.2d 706,27 Tenn.App. 731
• Parties: TRI-STATE TRANSIT CO. OF LOUISIANA, Inc., v. DUFFEY.
• Court: Tennessee Court of Appeals

173 S.W.2d 706

27 Tenn.App. 731

TRI-STATE TRANSIT CO. OF LOUISIANA, Inc., v. DUFFEY.

Court of Appeals of Tennessee, Western Section.

November 15, 1940

Petition for Certiorari Denied by Supreme Court March 1, 1941.

Appeal in Error from Circuit Court, Shelby County; Harry Adams Judge.

Action by W. G. Duffey, as administrator of the estate of Dr. E. E Shell, deceased, against the Tri-State Transit Company of Louisiana, Incorporated, for death of plaintiff's intestate when he was struck by a bus. From a judgment for plaintiff after defendant's motion for directed verdict was overruled, defendant appeals in error.

Affirmed.

Winchester & Bearman and Frank H. Gailor, all of Memphis, for plaintiff in error.

Wils Davis, Hugh Stanton, and W. F. Denman, all of Memphis, for defendant in error.

ANDERSON Judge.

This was an action instituted by W. G. Duffey, Administrator of the estate of Dr. E. E. Shell, deceased, against the Tri-State Transit Company of Louisiana, Inc., to recover damages for the alleged wrongful death of the plaintiff's intestate which resulted from injuries sustained when he was struck by a large passenger bus operated by a servant of the defendant. There was a verdict for the plaintiff in the sum of $7,500. Upon consideration of a motion for a new trial the Judge suggested a remittitur of $1,500, and this suggestion having been accepted, a judgment was entered for the balance. The defendant appealed in error.

The accident occurred about 6 o'clock p. m. on November 18 1938, while the plaintiff's intestate was crossing from the south side to the north side of Madison Avenue at a street intersection in the City of Memphis. The defendant's bus was proceeding west on the north side of Madison.

The plaintiff plead and proved the provisions of a city ordinance fixing the maximum speed limit for the operation of motor vehicles on the streets at 25 miles per hour and also providing that "drivers of vehicles shall exercise all possible care not to interfere with or injure pedestrians lawfully in the use of streets, crossings and cross-walks." He also relied on subsection (c) of Code section 2687, which, with certain exceptions, not here material, omitted, is as follows: "The driver of any vehicle upon a road, street, or highway within a business or residence district shall yield the right of way to a pedestrian crossing such road, street or highway within any clearly marked cross-walk or any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block * * *."

The chief contention is that the trial judge should have sustained the defendant's motion for a directed verdict, and this is based primarily upon the asserted proposition that the undisputed evidence showed that the deceased was guilty of proximate contributory negligence.

Under settled principles this question must be disposed of upon a consideration of the evidence tending to support the verdict without reference to that opposed thereto. Having regard to this rule, we find that there was material evidence tending to show these facts. Madison Avenue is 54 feet in width from curb to curb and runs east and west, carrying a double line of street car tracks in the center. It is intersected by Pauline Street, in which there is an offset of about 100 feet. The latter street, north of Madison, is known as north Pauline and south of Madison as south Pauline. Due to the offset the west line of north Pauline at the point where it intersects Madison is 98 feet east of the east line of south Pauline projected across Madison. The plaintiff's intestate was a physician about 67 years of age, engaged in the general practice of medicine in Prescott, Arkansas. He had come to Memphis with his step-son, W. P. Dedwoody, and the latter's wife and their little child, for the purpose of having the child treated at Campbell's Clinic, which was situated on Madison Avenue about two blocks west of Pauline. They had procured living quarters located on the north side of Madison Avenue about opposite the point where south Pauline enters that thoroughfare. Just prior to the accident, plaintiff's intestate, his step-son, the latter's wife and their child had patronized a cafe located on the south side of Madison, east of south Pauline. Upon leaving the cafe, intending to go to their living quarters, they proceeded west on the south side of Madison to the southeast corner of that avenue and south Pauline, left the curb at that point and started across Madison Avenue traveling in the regular pedestrian crossing included in the prolongation of the east boundary line of south Pauline.

At or about that time the defendant's passenger bus, in which were riding a number of football players of Mississippi State University, who were en route from their school to Memphis to play a football game, was traveling west on the north side of Madison Avenue. Mr. Dedwoody, who had the child in his arms, and his wife stopped near the north rail of the north street car track to let the bus pass. The plaintiff's intestate did not stop but continued in an attempt to cross the street. He was struck by the right side of the front of the bus and knocked some 20 to 25 feet west, sustaining injuries from which he died.

Dedwoody testified that as he stopped near the north rail of the street car track his wife and plaintiff's intestate, Dr. Shell, "were a little behind me; just a little bit to my left; * * * so I turned around and looked at them, then I turned back and waited for the by-passing bus to pass, and when I saw Dr. Shell, he was a little to my left, just behind me; and that is the last I saw either one of them until after the accident." Another witness by name of Gore, who saw the accident, was walking east on the north side of Madison. He testified that he saw the party of three leave the southeast corner of Madison and south Pauline and start across the street "going a little slow"; that "as they approached the middle they slowed up a little bit and the woman and one man stopped in the middle of the street and the other man instead of stopping attempted to run across the street;" that "he was going faster than a real fast walk" and "made about two jumps covering about six or eight feet from the center of the street before the bus hit him."

A number of witnesses testified that at the time of the accident the bus was traveling at a rate of speed of from 25 to 30 miles an hour. It was equipped with air brakes that were in good condition and after the deceased was struck the vehicle was brought to a stop within a distance equal to its own length.

The driver of the bus, testifying for the defendant, stated that he did not see the deceased until "he was directly in front of my bus", but that "just before I got to the intersection of Pauline and Madison I noticed a man and lady coming from the south side of Madison Avenue toward the north curb, and the man was carrying a little child"; that "I had slowed up the bus at the intersection, and there was not anything coming out of that intersection"; that the man and the woman crossing the street "were looking towards my bus" and "they stopped right at the edge of the street car track"; "I took my foot off of the brake pedal and put it back on the accelerator * * * just ready when necessary to put gas to it"; that he was traveling "between 20 and 25 miles an hour"; that when the couple crossing the street stopped "I turned my eyes ahead, but I still had them in mind. I never had them out of my mind, and they were the only two people I had seen at all, and I just went on in my bus and passed them, and I saw a man right in front of me, right square in front of me, and he was running, and he made one step, and the right front side of my bus hit him and knocked him off to the right, and he ran ahead, approximately 10 to 12 feet ahead of the bus, and to the right"; and that "as soon as I saw him I took my foot off of the accelerator and I jammed on the brake", and the bus came to a stop in about 30 feet, "right up next to the car track".

On cross-examination the driver testified that the man and woman had stopped "before I reached north Pauline"; that at that time he was "approximately 130 or 135 feet to the east." Another employee of the defendant who had been alternating in driving the vehicle, testified that the bus was from 50 to 100 feet east of the intersection of Madison with north Pauline "when I saw two people coming out in the street, just leaving the curb"; that "they came out from the curb to the center of the street and stopped on the outside car track"; that he first saw the deceased when he was about 8 feet distant "directly in front of the driver's seat"; that he was then running.

On cross-examination he testified that he watched a man and woman as they traveled all the way across Madison Avenue until they stopped and that he never did see the third person, who turned out to be the deceased, until he was immediately in front of the bus, running slightly at an angle to the northwest.

A second bus, owned and operated by the defendant, was following immediately behind that which struck the deceased. It was also conveying football players to Memphis. The driver of that truck also testified that he saw Dedwoody and wife as they crossed the street "but I never did see Dr. Shell until he ran out from behind these people. He just darted out across the street from the other side, this side up here, and kind of came angling across the street with a slight angle to it, the way he came." He also testified that the front of the other bus "was almost even with these people when I saw the man run out".

Incidentally the defendant's drivers all testified in effect that the point...