West Const. Co. v. White

• Decision Date: 05 December 1914
• Citation: 172 S.W. 301
• Parties: WEST CONST. CO. v. WHITE.
• Court: Tennessee Supreme Court

172 S.W. 301

WEST CONST. CO. v. WHITE.

Supreme Court of Tennessee.

December 5, 1914.

Certiorari to Court of Civil Appeals.

Action by Carl White against the West Construction Company. Judgment for plaintiff was affirmed in the Court of Civil Appeals. The record is brought here on certiorari. Judgment reversed, and suit dismissed.

Cooke, Noll & McAllester, of Chattanooga, for plaintiff. W. B. Miller and Geo. H. West, both of Chattanooga, for defendant.

NEIL, C. J.

Plaintiff in error was the owner of a concrete mixer, and, at the time the accident occurred which is the subject of the present controversy, had placed this piece of machinery on McCallie avenue, in the city of Chattanooga, with a view to doing certain work for the city. Owing to the weather it had not been possible to do the work, and the machine had stood on the side of the street for about two weeks. It was from 4 to 6 feet wide, 12 feet long, and 9 feet high. It was located very close to the sidewalk — within 4 feet of it. McCallie avenue is a wide, well-kept street, but, at the place where this mixer was located, it was dark; the only street light was a 10 or 12 candle power electric light, one-third of a block away, and the night being misty and dark the lamp did not shed much light on the place where the mixer was. There is a controversy as to whether a sufficient number of warning lights were hung on the object. Witnesses for plaintiff in error testify that two red lights were located there in such a position as that they might be seen from every direction. The collision occurred between 1 and 2 o'clock in the morning. There is evidence that at that time there was only one light, and that was on the front end of the mixer. The defendant in error's automobile approached the object from the rear, and there is testimony that the red light on the front end of the mixer could not be seen from that direction.

Carl White, Jr., a son of defendant in error, was driving the machine. He testifies that he went out McCallie avenue that night, going away from the city, and passed right by the concrete mixer, but does not remember having seen it. Coming back the same night, he says he did not see the object until he got within 10 yards of it, and that he did not then have time to turn out before striking it.

There is much evidence in the record as to whether Carl White, Jr., was driving the car in excess of 15 miles an hour, the speed limit allowed by the ordinance of Chattanooga. We assume that he was driving within the limit of 15 miles on hour. We shall also assume that there was only one red light on the concrete mixer, and that one on the front end, and that it could not be seen by the driver of the automobile. Nevertheless defendant in error is not entitled to a judgment for the injuries caused to his automobile by the collision. It was negligence for the driver of the automobile to propel it in a dark place in which he had to rely on the lights of his machine at a rate faster than enabled him to stop or avoid any obstruction within the radius of his light, or within the distance to which his lights would disclose the existence of obstructions. Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629, 135 Am. St. Rep. 30. If the lights on the automobile would disclose obstructions only 10 yards away, it was the duty of the driver to so regulate the speed of his machine that he could at all times avoid obstructions within that distance. If the lights on the machine would disclose objects further away than 10 yards, and the driver failed to see the object in time, then he would be conclusively presumed to be guilty of negligence, because it was his duty to see what could have been seen. McDonald v. Yoder, 80 Kan. 25, 101 Pac. 468.

As said in Berry on Automobiles, page 158:

"One may be guilty of operating an automobile at a negligent rate of speed and still be wholly within the rate fixed by statute. As a general rule it is no defense to an action for injuries that at the time of the accident complained of the defendant was not exceeding the speed limit established by law."

The facts in Lauson v. Fond du Lac, supra, were these: Lauson was a passenger in a car driven not exceeding 8 miles an hour by Hippe on the main highway between two cities of Wisconsin, and within the corporate limits of Fond du Lac. A culvert in the road was being replaced, leaving an opening of about 8 feet in width and 9 feet in depth. Barriers were erected on each side, consisting of a single fence board 16 feet in length, nailed to a post on either side. The accident occurred at 10 o'clock on a dark, rainy night; the car running through the barrier and into the dangerous cut, and seriously injuring Lauson. The car had one light, tilted downward to light the road in front. The turning point in this case was that the driver could not see objects more than 10 or 12 feet ahead, and at the speed under which he was proceeding he could not bring his car to a stop within less than 15 to 20 feet. The barriers were about 4 feet above the surface of the road, and the alleged negligence of the town "consisted in its failure to place a light around the opening, or to afford any protection to travelers, except such as might be afforded by the barriers that were...