Zamora v. Shappley

• Decision Date: 13 December 1941
• Parties: ZAMORA v. SHAPPLEY.
• Court: Tennessee Court of Appeals

173 S.W.2d 721

27 Tenn.App. 768

ZAMORA v. SHAPPLEY.

Court of Appeals of Tennessee, Western Section.

December 13, 1941

Petition for Certiorari Denied by Supreme Court April 4, 1942.

Appeal in Error from Circuit Court, Shelby County; H. W. Laughlin Judge.

Action by Mrs. Ramon Zamora, as administratrix of the estate of Thomas Maupin, deceased, against James A. Shappley for death of plaintiff's intestate in an automobile accident. From a judgment upon a directed verdict for defendant, plaintiff appeals in error.

Affirmed.

Galloway & Galloway and James H. Hicks, all of Memphis, for plaintiff in error.

King King & Laughlin and Thomas C. Farnsworth, all of Memphis, for defendant in error.

ANDERSON Judge.

This action was brought by Mrs. Ramon Zamora, Administratrix of the estate of Thomas Maupin, deceased, against James A Shappley, to recover damages for the alleged wrongful death of the plaintiff's intestate, who was fatally injured when he walked into the side of the defendant's automobile at the intersection of Union Avenue and Dudley Street in the City of Memphis. At the conclusion of the plaintiff's evidence, the Judge sustained the defendant's motion for a directed verdict upon the ground that there was not only no material evidence to warrant a conclusion that the defendant was guilty of actionable negligence, but the undisputed evidence showed that the decedent's own negligence was the proximate cause of his injury and death. A judgment was accordingly entered, dismissing the suit, and the plaintiff appealed in error.

By appropriate assignments of error, the plaintiff challenges the correctness of the view of the trial Judge with respect to both of the issues mentioned. We find it necessary to consider only the conclusion reached with respect to the proximate contributory negligence of the decedent. Hicks v. Herbert, 173 Tenn. 1, 113 S.W.2d 1197.

Our decision rests upon a theory of the facts with respect to which there was some material evidence when regarded in the light most favorable to the plaintiff. That theory is as follows: Union Avenue runs east and west and carries four lanes of traffic separated by yellow lines marked on the pavement--two lines for westbound traffic and two for eastbound. It is eighty feet wide from curb to curb. From the north curb to the first yellow line is approximately twenty-four feet; from that point to the line in the center of the street is approximately sixteen feet. Dudley Street runs north and south and intersects Union Avenue at right angles. It is forty feet in width from curb to curb.

The accident occurred about 6 o'clock p.m. on April 21, 1941. A ball game played in the neighborhood had just been completed and Dudley Street in the vicinity of the intersection was crowded with traffic, including pedestrians who had been attending the affair. On Union Avenue there was, in the language of the witnesses, "a continuous stream" of automobiles in all four traffic lanes, extending for two or three blocks in each direction, and traveling at an estimated distance of fifteen to thirty feet apart, and at a rate of speed of from twenty-five to thirty miles per hour, that rate being within the municipal speed limit as fixed by an ordinance of the city.

As it approached the intersection, the car operated by the defendant was traveling west at that rate in the line of traffic occupying the lane adjacent to the line in the center of Union Avenue. Twenty-five or thirty feet ahead of him was another car traveling at about the same rate of speed but in the adjoining traffic lane to the north.

Quite a number of pedestrians leaving the ball game had come down the walkway on the west side of Dudley. Among these was the decedent. All except him appear to have stopped, to await an opportune moment for crossing. Instead of doing as the others did, deceased stepped off of the curb, started across the street, with his hands in the pockets of a lumber jacket that he was wearing, eyes cast upon the ground, and without having looked to either his right or left. As he left the curb, the car in the northernmost lane of traffic was then at a distance of about twenty feet, and the defendant's car was, as stated, some twenty-five or thirty feet to the rear in the adjacent traffic lane. In order to avoid striking the decedent, it was necessary for the first car--that is, the car in the northernmost lane--to swerve sharply to the right, which it did and succeeded in passing to the rear of the deceased, who, thereupon, to again use the language of a witness, "started back to the curb and must have changed his mind; he whirled around and ran and hit the other car on the side", that is, the defendant's car. In an effort to avoid the accident the defendant, upon observing the situation, swerved sharply to the left as far as the eastbound traffic would permit, at the same time applying his brakes. The front part of the car had passed the deceased when he ran into the side of the vehicle at or about the handle of the front door.

Now, as we say, the foregoing is that version of the facts finding some support in the evidence, regarded in the light most favorable to the plaintiff. Assuming it to be true, can it be said that there was any probability of reasonable minds disagreeing about the proposition that the deceased, in pursuing the course he did, failed to exercise ordinary care for his own safety, and that his omission in this regard was a proximate cause of his fatal injury? Hicks v Herbert, 173 Tenn. 1, 113 S.W.2d 1197. As already said, the trial judge answered this question, "No", and so do we. These are the reasons: The general rule in this State and elsewhere is, that one preparing to cross a public street is not under the absolute duty to look both ways and listen for approaching vehicles, as he would be if he were about to cross a railroad track; for he has a right to assume that the operator of an approaching vehicle will also exercise due care and have his vehicle under control as he comes to the scene. Studer v. Plumlee, 130 Tenn. 517, 172 S.W. 305; Hunter v. Stacey, 24 Tenn.App. 158, 141 S.W.2d 921; and cases cited. Since such a crossing pedestrian has equal rights with others to the use of the street, his duty is no more than to exercise ordinary care for his own safety, to be measured by the situation confronting him; such care as the immediate circumstances of place and condition demand of an ordinarily prudent person and, whether the requirement of ordinary care has been met, is usually a question for the jury. But...