Williams v. Jordan
| Decision Date | 05 May 1961 |
| Citation | 208 Tenn. 456,346 S.W.2d 583,12 McCanless 456 |
| Parties | Viola WILLIAMS and Val Percy Patillo, Petitioners, v. Samuel JORDAN, Administrator of the Estate of Anthony Jordan, Deceased, Respondent. 12 McCanless 456, 208 Tenn. 456, 346 S.W.2d 583 |
| Court | Tennessee Supreme Court |
William H. Woods, Goodpasture, Carpenter, Dale & Woods, Nashville, for petitioners.
Jack Norman, Jr., Nashville, for respondent.
Samuel Jordan as administrator of the estate of Anthony Jordan, deceased, recovered a verdict and judgment in the Circuit Court in the amount of $15,000 against the above named petitioners and the same was affirmed by the Court of Appeals. We granted certiorari.
There are several assignments of error but in the view we take of the case it will not be necessary to mention any others than the first assignment, which complains that the Court of Appeals erred in affirming the trial court in overruling the defendants' motion for a directed verdict made at the conclusion of the plaintiffs' proof and renewed at the close of all the proof. The evidence is uncontradicted in any material aspects and may be summarized as follows:
The accident in question occurred on June 19, 1959, at about 7:00 p. m. on a clear day when it was still daylight. The deceased was a 13-months old boy who was able to walk to the extent that he could get about without assistance. His parents and 6 of the other children, the oldest of which was 8 years old, resided at 921 24th Ave. N. in Nashville, Tennessee. That street is about 30 feet wide, paved with asphalt to the property line on each side, but there are no sidewalks. Immediately inside the property line, however, is a strip 5' 8" wide in front of the walk leading from the front steps toward the street which is covered with some gravel and is a sort of mixure of gravel, dirt and grass, on which automobiles are customarily parked on that side of the street R. pp. 39 and 58. The distance from the house (not the front steps) to the graveled area in front of the yard is 21' 8'', and from the foot of the front steps is 16'. This walk leading from the front steps is composed of stepping stones rectangular in shape and consisting of 2 parallel rows and extends to the edge of the gravelled area.
This residence is on the west side of 24th Avenue and corners on that avenue with Marina Street to the south; the distance from Marina Street to the north edge of this walk is 48'; the record is not clear as to the length of the frontage of this lot on 24th Avenue, but the record reflects that about 90 feet to the north from this gravelled parking area there is some sort of playground with swings where the other children in this and other families in the area were playing at the time of this accident.
The respondent Patillo driving the automobile belonging to his aunt, the respondent Viola Williams, came from the north, drove on to this little parking strip or largely on same with possibly his left wheels on the edge of the pavement, stopped his car just about in line with this stepping stone front walk and went across the street to see a boy friend of his who lived in a residence on that side of the street. At that time he observed the children playing down to the northwest of the residence on the playground (the mother says they were there) and, although the mother and child were on the porch with the child sitting on the top step, Patillo testified that he did not observe them. He returned to his car in about 5 minutes, coming up to the car at an angle slightly toward the rear, got in on the lefthand or driver's side, started his motor and drove off. He later was informed of the tragedy and stated that as he drove away he felt a bump under his right rear wheel but he thought he had passed over a stepping stone that was lying out in the gravel.
While Patillo was visiting across the street, the child's mother, according to her testimony, called down to her children at the playground to bring up the child's playpen and then she went into the back of the house to obtain a ball for the child to play with, leaving the child sitting on the steps. She was gone, according to her estimate, 2 or 3 minutes and was returning to the front of the house when she looked out and saw this car drive away, heard some child cry out, and ran out and discovered that her little boy was on the ground on his all fours on the grass 5 or 6 feet from the road or street and about 10 feet south of the line of the stepping stones and that he was obviously injured. The lad across the street took her and the child to Vanderbilt Hospital but the child was dead upon arrival.
While it is true that no witness actually saw the car run over or strike the child, yet the circumstances point indisputably to the fact that the child in some manner was fatally injured by this particular automobile and no insistence to the contrary is now made by the petitioners. The determinative question is, however, whether or not there is any evidence, direct or circumstantial, from which it may be inferred that the driver of the automobile was guilty of negligence. There is not one iota of evidence as to where this child was located, whether sitting, standing or lying down, so as to show that he could have been seen by Patillo as he approached the automobile from the left side. The declaration, of course, alleges that 'plaintiff's minor son was at that time plying some few feet in front of the right front wheel of the automobile belonging to the defendant', but there is absolutely no proof to that effect. Patillo testified that he did not see the child and that he could not have seen him, had no reason to suspect that the child was anyways near the car and that he did not go around to the front or the right side or look under the automobile before resuming his seat at the wheel. The mother of the child testified that she saw Patillo drive upon and park and had seen him drive up and park in front of her house previous to the accident; and Patillo testified that when he drove up, he did not notice the mother and child on the porch. The fact that Patillo admitted that he heard a bump and thought his rear wheel had run over something probably the stepping stone, has absolutely no probative value to show negligence, because he was already either guilty of negligence or he was not guilty of any. If Patillo had seen the mother and child on the porch, he had a right to assume the child was in no danger and was being cared for. The child who hollered was never identified and the record does not show what distance the child was from the car when she hollered.
There is accordingly, in our opinion, no basis on which this case should have been submitted to the jury, unless under the circumstances of this case the operator of this motor vehicle in the exercise of ordinary care should have looked under and all around the automobile before getting in and taking off. It seems that merely to state the question is to give the answer that ordinary care would make no such requirement. No case has been cited to that effect and the rule otherwise is practically universal.
No similar case has been found in Tennessee. Counsel for petitioners has cited a large number of cases from other jurisdictions which involve analogous situations. In Williams v. Cohn, 1926, 201 Iowa 1121, 206 N.W. 823, the court specifically held on similar facts that no negligence is shown when there is no evidence that the driver could have seen the child in the exercise of ordinary care; and that there was no duty to look around and under the truck. The facts of that case are as follows. In broad daylight a grocery delivery truck was driven into the driveway alongside the residence of plaintiff's intestate and was parked about even with the kitchen. The mother and three children ages 6, 4 and 1 1/2 years, the last being the deceased, were sitting on the front porch in full view of the driver of the truck and were seen by him. The mother left the children on the porch and went to the kitchen to receive the groceries, which consumed about 2 minutes; the accident occurred while she was in the kitchen. It was shown that in the meantime the two older children went inside the house and the deceased went off the porch to the rear of the truck and then to the front in a position by the front wheel where the driver could not see him on his way back to his truck. As he backed up he ran over the child.
The opinion points out clearly the difference between the mere fact that a child or children are in the vicinity and the important fact that they are in a position of close proximity to the truck or are otherwise in a situation of danger that requires the operator of a vehicle to exercise care commensurate with that potential danger. This is the basic error in the dissenting opinion which will be dealt with hereinafter.
The following quotation sums up the case quite well:
'A driver * * * is under no legal obligation to make a search around and under his car 'lest a child too young for discretion and undirected by parents has tucked herself away in an obscure place, beyond the casual and convenient notice of the driver." 206 N.W. at page 825.
'It is one thing to have a state of...
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