Walls v. Lueking

• Decision Date: 04 December 1959
• Citation: 46 Tenn.App. 636,332 S.W.2d 692
• Parties: Jack D. WALLS et al., Plaintiffs In Error, v. Robert C. LUEKING et al., Defendants in Error.
• Court: Tennessee Court of Appeals

Page 692

332 S.W.2d 692

46 Tenn.App. 636

Jack D. WALLS et al., Plaintiffs In Error, v. Robert C. LUEKING et al., Defendants in Error.

Court of Appeals of Tennessee, Eastern Section.

Dec. 4, 1959.

Certiorari Denied by Supreme Court March 11, 1960.

McDavid & Lockett, Harriman, for plaintiffs in error.

John B. Rayson, Stuart F. Dye and Kramer, Dye, McNabb & Greenwood, Knoxville, and Elmer L. Eblen, Kingston, for defendants in error.

McAMIS, Presiding Judge.

Jack D. Walls, et al, individually and as partners doing business under the style of Walls & Coker Coal Company, sued Lueking Brothers, a partnership, for $5,500 damages caused by a tree falling on two of plaintiffs' trucks while loading coal at defendant's strip mining operation. The trial court directed a verdict for defendant and plaintiffs have appealed.

The gravamen of the action is an alleged violation of the duty owing both by statute, T.C.A. Sec. 58-1504, regulating strip mining operations, and under the common law to plaintiffs as invitees, to maintain the premises under defendant's control in a reasonably safe condition. The questions are: (1) Could reasonable minds disagree as to whether, under all the facts and circumstances, defendant failed to exercise due care and (2) Does the statute apply? There are no disputed facts.

The rule is that where different conclusions might reasonably be drawn from undisputed facts the questions of negligence and ordinary care are for the jury. Chattanooga Gas Company v. Underwood, 38 Tenn.App. 142, 270 S.W.2d 652; Shuler v. Clabough, 38 Tenn.App. 333, 274 S.W.2d 17; Managements Services, Inc. v. Hellman, 40 Tenn.App. 127, 289 S.W.2d 711. It is only where all reasonable minds would agree that these questions may properly be withdrawn from the jury.

Giving full recognition and effect to these well established holdings, under the facts and circumstances hereinafter outlined, we have concluded that plaintiffs failed to make out, prima facie, a violation of any common law duty owing plaintiffs as invitees.

On August 24, 1956, defendant had under lease a large boundary of mountain land in Morgan County on which it was stripping coal. Plaintiffs had contracted with defendant on a per ton basis to haul the coal to Kingston where it was delivered to the T. V. A. Steam Plant. Access to the site of the stripping operation was over a private road several miles in length through wooded lands covered by the defendant's lease.

About a week before the day in question defendant had blasted and removed the overburden at the particular location here in question on the side of the mountain, leaving exposed above ground on the upper side of the pit a solid rock bluff or wall about 30 feet high. Two of plaintiffs' trucks were standing at or near the base of this wall waiting to be loaded by defendant's highlift when suddenly and without warning a dead and somewhat decayed tree which had been standing 20 feet back of the wall toppled and fell over the bluff, damaging the two trucks.

The proof shows without dispute that the tree which fell could not be seen from the pit because of thick foliage on other trees and, for this reason, its presence could have been discovered by defendant only by making an inspection of the area above the rock wall. We do not appear to have a case dealing with the question of the duty of inspection in discharging the obligation of a land owner to an invitee under analogous conditions.

In Northcross v. Loew's Memphis Theatre Co., 3 Tenn.App. 51, a building fell while in process of demolition injuring property of the plaintiff on adjoining premises. The court cited Patterson v. Jos. Schlitz Brewing Co., 16 S.D. 33, 91 N.W. 336, and said:

'The owner of property will be chargeable with knowledge of a defect which a reasonable inspection would have revealed.'

However, the circumstances of that case were entirely unlike those of the present case and did not involve the duty of a landowner to an invitee.

Cases cited in defendant's brief, including Chambers v. Whelen, 4 Cir., 44 F.2d 340; Zacharias v. Nesbitt, 150 Minn. 369, 185 N.W. 295, 19 A.L.R. 1016, 1019 and O'Brien v. U. S., D.C., 166 F.Supp. 231, dealing with the duty of a landowner to remove trees overhanging a public road are not materially helpful because they appear to be based on the theory that the duty of care is upon the public authority maintaining the road and not upon the landowner, that is, that the landowner in failing to remove the tree is not violating a duty owing a traveler on the public road. No cases are cited in the excellent brief filed by plaintiffs' counsel where liability has been imposed under similar circumstances. The question must, therefore, be decided under general principles governing the liability of a landowner to an invitee.

In the leading case of Illinois Cent. R. Co. v. Nichols, 173 Tenn. 602, 612, 118 S.W.2d 213, 217, it was said:

'In order to impute to the owner knowledge of a dangerous thing, or place, the danger therefrom must be such as is recognized by common experience, or might reasonably be expected or anticipated by a person of ordinary prudence and foresight. Negligence consists in a failure to provide against the ordinary occurrences of life, and the fact that the provision made (here the ventilated slat floor) is insufficient as against an event such as might happen once in a lifetime (here that this customer for tomatoes would enter this freight car wearing a soft and worn rubber heel, and...