Virginia Ave. Coal Co. v. Bailey

• Citation: 205 S.W.2d 11
• Parties: VIRGINIA AVE. COAL CO. v. BAILEY.
• Decision Date: 23 October 1947
• Court: Tennessee Supreme Court

Page 11

205 S.W.2d 11

VIRGINIA AVE. COAL CO. v. BAILEY.

Supreme Court of Tennessee.

October 23, 1947.

Error to Law Court of Bristol, Sullivan County; Shelbourne Ferguson, Judge.

Action by Preston F. Bailey against the Virginia Avenue Coal Company for personal injuries and property damage sustained when plaintiff drove his automobile into the rear of defendant's parked truck. A judgment for plaintiff was affirmed by the Court of Appeals, and defendant brings error.

Judgment of Court of Appeals affirmed.

Caldwell & Brown, of Bristol, for plaintiff in error.

Baumgardner & Stacy and Lyle Burrow, all of Bristol, for defendant in error.

GAILOR, Justice.

This is a suit brought by Bailey against the Coal Company, for personal injuries and property damage he sustained when he drove his automobile into the rear of the Coal Company's truck which was illegally double-parked at night, without lights, on the Virginia side of State Street in Bristol. In the Circuit Court Bailey recovered judgment for $1,500, which after motion for new trial, was approved by the Trial Judge. On appeal the judgment was affirmed by a majority of the Court of Appeals. On account of the dissenting opinion we granted certiorari, have heard argument and the case is before us for disposition.

The weight of the evidence is that the accident occurred in a dark part of the street on a night when it was raining and snowing. Bailey, who was driving his car at a moderate speed of 15 to 20 miles per hour, had his vision impaired not only by the conditions of the weather and the unlighted street, but by the lights of approaching cars. The Company's truck was parked double without lights and in direct violation of a City Ordinance.

The only real question presented by the petition for certiorari is whether or not Bailey was guilty of proximate contributory negligence as a matter of law.

In this case, "proximate contributory negligence as a matter of law" is to be determined by the application of Virginia law, of which under Chap. 137, Public Acts of 1943, Code sec. 9773.4, we are required to take judicial notice. Under Virginia law, the definition of "proximate contributory negligence as a matter of law," is practically identical with our own and is thus given in a recent Virginia case: "If the question of contributory negligence depends on a state of facts, upon which reasonable and fair-minded men might arrive at different conclusions, it is then a question for the jury, and their verdict should not be disturbed. But where the uncontroverted evidence and the direct inferences therefrom are such that reasonable and fair-minded men should not differ in their conclusions, the question then becomes one of law, and must be decided by the Court. Etheridge v. Norfolk Southern R. Co., 143 Va. 789, 129 S.E. 680; Whipple v. Booth, 155 Va. 413, 154 S.E. 545; Angell v. McDaniel, 165 Va. 1, 181 S.E. 370." Yellow Cab Co. v. Gulley, 169 Va. 611, 194 S.E. 683, 685.

In Main St. Transfer & Storage Co. v. Smith, 166 Tenn. 482, 63 S.W.2d 665, the old rule of West Const. Co. v. White, 130 Tenn. 520, 172 S.W. 301, and Knoxville Ry. & Light Co. v. Vangilder, 132 Tenn. 487, 178 S.W. 1117, L.R.A. 1916A, 1111, was modified and it was said that "exceptional circumstances" will render the rule inapplicable, that it is negligence in law to operate an automobile through darkness at a rate of speed which will not permit the avoidance of an obstruction disclosed by the headlights. In the present case, the "exceptional circumstances" are: (1) The conditions of the weather, rain and snow, (2) The blinding lights of approaching cars, (3) The double...