Williams v. City of Nashville

• Decision Date: 11 March 1922
• Citation: 238 S.W. 86,145 Tenn. 668
• Parties: WILLIAMS v. CITY OF NASHVILLE.
• Court: Tennessee Supreme Court

238 S.W. 86

145 Tenn. 668

WILLIAMS v. CITY OF NASHVILLE.

Supreme Court of Tennessee.

March 11, 1922

Error to Circuit Court, Davidson County; A. B. Neil, Judge.

Action by J. H. Williams against the City of Nashville. A judgment dismissing the action when plaintiff declined to plead further after his demurrer to a special plea was overruled was affirmed by the Court of Civil Appeals, and the plaintiff brings error. Reversed and remanded.

B. D Shriver and J. E. Travis, both of Nashville, for plaintiff in error.

Morton B. Adams and J. Washington Moore, both of Nashville, for defendant in error.

McKINNEY J.

J. H Williams, who will be hereinafter referred to as the plaintiff, instituted this suit against the city of Nashville, hereinafter referred to as the defendant, to recover damages on account of injuries received when his buggy was overturned one night by running against and on a pile of dirt which the city had placed in the middle of Lindsley avenue.

The declaration, as amended, is as follows:

"The plaintiff, J. H. Williams, sued the city of Nashville for ten thousand ($10,000.00) dollars damages, and for cause of action states to the court as follows:

That before and at the time hereinafter complained of, to wit, on the 19th day of December, 1916, the defendant, city of Nashville, was and is a municipal corporation chartered under the laws of Nashville, and organized for the purpose of conducting city and municipal affairs of the city of Nashville, Tenn., and that as a part of its obligations and duties to the public it has control of the streets and sidewalks of the city of Nashville, and especially of keeping sound, safe and suitable for public use and travel, all of the said public streets, sidewalks, crossings and alleys of said city, and particularly of the public street known as Lindsley avenue, in said city of Nashville, and in the vicinity of the intersection of First Avenue South, and in front of the Old Peabody Campus, South Nashville, and it was the duty of said city to keep said Lindsley avenue at or near said First Avenue South, and in front of said campus, in a safe and suitable condition for public use and travel.

Said defendant, however, notwithstanding the duty and obligation imposed upon it as aforesaid, failed to keep said Lindsley avenue, a public street in the city of Nashville in a safe sound and suitable condition for public use and travel, but on the contrary negligently, wrongfully and willfully placed a pile of dirt in or near the center of said public street, at or near the intersection of First Avenue South, and in front of said campus, and said pile of dirt was placed in such a negligent and unsafe manner as to constitute a nuisance and be a danger and menace to pedestrians traveling and passing along said street, and said pile of dirt was so placed and allowed to remain in an unsafe, dangerous and defective condition and an obstruction and a danger for pedestrians of said city of Nashville, and with the knowledge of said city, and was unguarded, unlighted and unprotected and was permitted to remain in said condition after dark, and at the time of the injuries herein mentioned.

By reason of said wrongful acts of defendant, the plaintiff, J. H. Williams, on the 19th day of December, 1916, while driving along said Lindsley avenue, as he had a right to do, and while in the exercise of due and reasonable care, his buggy in which he was riding ran into and upon said pile of dirt turning it over, throwing plaintiff violently to the ground and as a result thereof severely injured his left leg and knee, wrenching and bruising his back and neck and otherwise bruising and injuring him and doing him permanent and great bodily injury by reason of which he became sick, sore, lame and disabled, causing him to be confined to his bed for more than a month, incurring doctor's bill as well as other expenses, and since that time he has suffered great pain and agony and still does and will continue to suffer great pain and agony to his damage in the sum of ten thousand ($10,000) dollars.

The work in said street was being performed by the city directly and the pile of dirt was placed and left in the street by the city's own servants without the medium of any contractor of any kind.

A written notice of said injury, the time and place where said injury was received, and nature of same was duly served upon the mayor of said city of Nashville within the time as required by law, and although liable said city of Nashville refuses to pay, hence the plaintiff sues and demands a jury to try this cause."

A special plea was filed by the defendant to the effect that notice to the city in conformity with chapter 55 of the Acts of 1913 was not given. While notice was given, it is conceded by counsel for the plaintiff that said notice was not sufficient to meet the requirements of the statute, in that it did not sufficiently describe the nature of the injuries and the place where the accident occurred.

To said special plea the plaintiff interposed the following demurrer:

"The declaration shows on its face that the work had been planned and was being executed directly by the city, through its own direct employees and was not being done through a contractor. This allegation of the declaration is not denied by the pleas, and under the law no notice is required, when the work is planned and is being carried out by the city itself through its own direct employees and servants."

The trial court overruled said demurrer, and, the plaintiff declining to plead further, dismissed his suit.

Upon an appeal the Court of Civil Appeals affirmed the judgment of the circuit court, and was of the opinion that, upon the authority of Hughes v. City of Nashville, 137 Tenn. 177, 192 S.W. 916, notice was necessary. The Court of Civil Appeals seemed to be of the further opinion that the only negligence alleged in the declaration was that of placing the dirt in the street, and that under the Hughes Case that was not negligence. Upon these questions the Court of Civil Appeals, in its opinion, said:

"The attorney for the plaintiff calls special attention to the fact that it is alleged in the declaration in the instant case that the city of Nashville 'wrongfully placed a pile of dirt in or near the center of said public street, * * * and that said pile of dirt was placed in such a negligent and unsafe manner as to constitute a nuisance,' and that the declaration as amended contains the further allegation that 'the work in said street was being performed by the city directly and the pile of dirt was placed and left in the street by the city's own servants without the medium of any contractor of any kind,' and he insists that these allegations in the declaration take the case out of the rule announced in the authorities above cited and bring it within the rule announced in the case of McCarty v. Town of Mountain

...