City of Winchester v. Finchum

City of Winchester

v Judy chum Patricia Fin (Nashville, Term, 1956.) December April 1,

Opinion filed and Pat B. (cid:127) L. Fricks- Stewart F. LyNch, GreeN, JohN error. Winchester, CD 'CD o

Joe R. Hickerson, Bean, Winchester, Jr., and Joe S. for defendant in error. opinion Neil delivered the

Mr.- Chief Justice Court. Judy

The defendant in error, Finchum, Patricia re- judgment covered a in the Circuit Court Franklin County against the of Winchester in the .sum- of same.being-for personal injuries $2,500, the received bicycle her riding the when she was struck defect in great the sidewalk which threw her with to' the violence pavement. charged dangerous It that this was a negligence defect due to the defendant’s was the and proximate injuries. cause of her general plea

The guilty defendant filed of not and special plea averring also a that the at the time violating the accident was an ordinance bicycle upon prohibited riding which Winchester negligence per her sidewalk and act in it was se so proximate injuries. canse and appeal prayed granted An Court and Appeals judgment below was We where affirmed. orally granted argued certiorari and the issues have been by coun s l.e assignments petition

The for error in the certiorari Appeals are- which the same the Court of considered overruled, (opinion Pelts). Presiding Judge opinion,of as we Inasmuch accord are in with full Appeals upon questions adopt the Court of these we here pertinent parts opinion of this Court. It reads as follows: general judgment plain-

“There was a verdict and City appealed tiff for $2,500. Defendant in error and support that no insists evidence verdict;, there was undisputed plaintiff: that evidence was that .the proximate contributory negligence; Judge Trial erred in the admission of evidence certain charge jury; his to the the verdict was excessive. considering

“In defendant’s first we must point, strongly look all construe it most evidence, plaintiff, sup favor take as true which tends to port right, countervailing discard all evidence, and Tyrus all allow reasonable in her favor. inferences City, & Co., Ft. S. M. R. 114 Tenn. 579, Kansas S.W. Sloan, 1074; Smith v. 189 Tenn. 368, 376-377, 227 S.W.2d 2. construed,- taken and tended evidence, so “The reasonably fol- prove; jury found, have and the could lowing occurrence -to facts and circumstances injuries:— plaintiff’s the nature (cid:127) “ years age. did live She a child She was visiting of Mrs. -there in home Winchester- but was Street,-a-promi- High on North which was located Street, hap- City. accident residential nent street The pened Plaintiff about a.m. on October bicycles daughter on the Helen were Mrs. Street’s High going from Mrs. concrete sidewalk on North Street, uptown southwardly section, home toward Street’s girl. plaintiff following the little other mishap on the sidewalk where it “The occurred driveway leading Her- residence crossed placed Atnip. point line At this a sewer had man been sidewalk and meter box under the had been set left sidewalk, and a hole had been under concrete pavement. five slabs of in the side- Pour or the concrete by'this driveway walk where it was crossed were broken through through looking one so 'that cracks in' ' ' pavement under it. broken could see dirt up fragments ‘rough jagged “It was broken into with edges’ pieces sticking and'‘sharp up’, said Mrs. Street. 'witness, Webber, Another Mrs. said: Well, ‘A. it just up rough course, broken there was some and, up. jagged edges standing Q. How much above the nor-' ' just Well, mal level of the sidewalk? A. I couldn’t judge, approximately though’'. matter of inches, years, Atnip had existed for This defect two get repair tried to it. Cross-examined the' City’s why sought repaired counsel to have as to he him dangerous, Atnip ‘I said: told whether was and it up (City get there Recorder) if fixed that he didn’t somebody get conld hurt’. ap-

“Plaintiff defect, not know of this and as she did girl, proached following bicycle, other little the on Describing looking it. she was did not see ahead and ‘ riding I hit that sáid: when accident, she Xwas ahd my bicycle’ piece I ‘Well, concrete was thrown from — jarred Her I bars’. hit, it me I over the handle and went tearing pavement, gash in fore- face struck the her a knocking cutting her nose in two of head, two, and teeth in her front back mouth. appears passed

“It ordinances .two July requiring abutting property 19,1912, on one owners sidewalks, to construct maintain concrete and and bicycle, velocipede, person forbidding any ride other wagon, buggy, upon sidewalk. It automobile proved, enforced ordinance however, that this practice children but it was constant for a common and bicycles Winchester; to ride sidewalks in habitually city cus- officials knew that children tomarily playground used sidewalks as a bicycles. their its-public city general

“The rule holds proprietary ways, governmental, but its its corporate duty capacity, to ex owes and it an absolute keep sidewalks ercise reasonable care to streets exercising' ordinary persons modes safe for use McCrady, City Memphis reasonable care. [249]; Fentress, Vinson v.

162, 164, S.W.2d 248, 359, 370, 232 Nashville v. 272; 25 Tenn.App. Brown, [615], 340, 345, 157 S.W.2d eases there cited. duty upon city

“This to use due care maintain primary, nondelegatable, its streets is and sidewalks city by any by cannot be evaded the of its avoided act (such respects pub duty) rests-primarily, own. ‘It the upon corporation, discharge obligation lic, the and the to duty upon suspended, this cannot be or cast evaded, ’ any Municipal others, acts of its own. Cor Dillon, porations, (5th ed.), pp. sec. 3020-302 principle applied

“This Smith, in Harbin v. supra; 112, 107; Fentress, 76 S.W.2d Vinson v. City Ferguson, Knoxville city 591, 241 S.W.2d it held 615, where liability primary could not shift its maintain side- to its abutting property by passing walks to ordi- owners, an Judge to nance. case, that effect. In the Harbin Cook said: “ weight authority ‘The sound and of reason

. , municipality liability primary that a cannot shift its , duty keep an. to streets and sidewalks rea- omission sonably requiring statutes and safe, ordinances abutting property owners maintain to sidewalks ad- joining premises operate impose their do to lia- bility directly'upon injury resulting such owners for consequence municipality’s to travelers in of the omis- duty’ (citing authorities). 'sion of City Winchester, “So, could not, duty pub aforesaid divest itself its to ordinances, keep reasonably its lic to sidewalks safe for their use ordinary modes. Of course, it could forbid the bicycles riding- walks, but and other vehicles snch on, protect pedestrians, was to intent of that ordinance dnty City pot snch riders to relieve the owed pnblic re- all with other members in common spect walks. snch to bicycles

“That ordinance outlawed the it did not make sidewalks, arid other vehicles on bnt beyond put snch riders them outlaws, themselves duty- protection the law, or divest pnb- all them in with other members owed common reasonably keep safe lic to use due care snch walks by pedestrians. for use keep safe

“The bound sidewalks reasonably for'bicyclists-, keep bnt was bound to them pedestrians walks safe for maintain snch —bound might against dangerous they defects were which so injury reasonably expected pedestrians; be to cause to injury duty causing a and it liable for breach of this pedes- a whether sidewalk, to a user of the such user bicyclist. trian a

; generally city permits “The authorities hold, where a bicycles though riding on its it sidewalks, that keep riding, does such not Suchwalks safe for it bound to duty pedestrians owe to to the riders same owes n safeguard dangerous against defects; walks such may bicyclist injuries him that a recover for caused proximate provided he was defect, such a contributory negligence. Bar- Guidi v. Town Great rington, Mag 916; Oconto, 272 Mass. 172 N.E. Le 577, 1019; 229 281 F.W. 118 A.L.R. Araba v. Or 688, Wis. 65, Capitol Stores, Inc., 239; 219 55 1045, La. So.2d leans Philadelphia, 227 75 L.R. 121, 1028, Collins v. Pa. A. 27 M' Am.St.Rep.

A.,N.S., 136 19 Ann.Cas. 909, 972, 873-874, 973; 118 19 Munici- Annotation, A.L.R. 1023; McQuillin, pal Corporations (3rd ed.) Bi- 7 Am. Jur. 54.54; sec. cycles, page sec. 17, injured by

“Where has been a child defect in a bicycle riding sidewalk while violation thereon in a city recovery some denied ordinance, cases have on the ground city duty keep that the. owed such such child no bicycle reasonably riding walks safe for thereon, expressed has been child view such a tres- was a passer duty. city to whom the See owed no cases cited in annotation 118 A.L.R. 1024-1025. “For the reasons stated, however, above we think that bicycles forbidding

the ordinance in Win- City’s duty chester did not abolish the to the children permitted whom it to ride can- sidewalks; say they trespassers; were that it owed them the duty pedestrians; same measure of which it owed and that they protection against were entitled to such defects injury pedestrian. would be actionable in case of to injuries pedestrians “We have numerous cases of holding defects in Some of cases such sidewalks. defects actionable are: Elrod Town Franklin, 140 (curb projecting Tenn. S.W. box 3 inches sidewalk); above the surface of the Osborn v. (paint Nashville, made slick); City Ferguson, sidewalk Knoosvillev. 34 Tenn. App. (sidewalk 585, 241 612 S.W.2d made slick Lysol dropped thereon). of See, bottle numerous cases collated in the 37 annotation, 1187, A.L.R.2d 1204-1211.

“On holding the other hand, some of cases defects City not actionable are: Batts v. Nashville, 22 Tenn. of

613 (a hole tapering to 3 App. 418, 1 123 1099 from S.W.2d Memphis wide); City deep Indies and 12 18 indies McCrady, supra projecting (concrete inches v. block 2% Rye adjoining block); City 25 Nashville, v. above the Tenn.App. (concrete 2 inches block 326, S.W.2d adjacent block). higher than question is to a'defect

“The whether is actionable height depth but from its be alone or' determined not surrounding said from all the circumstances. As was ‘ supra; to rest Nashville, “It will not do v. Batts arriving upon only. rule That is a factor in inches surrounding conditions and result, at but the other [City also be considered” Johnson v. circumstances must of] Claire, 481, 483’. Wis. 135 N.W. Eau City Memphis McCrady, supra, Court

“In depth height is said: ‘In none of cases negligence. Liability de- test of is obstruction made the imposed upon upon duty law pendent the breach dangerous guard against municipalities to obstructions municipality when sidewalk, liable on the and the danger from appears constituted obstruction anticipated’. reasonably injury might which be n conflicting, facts the evidence is or where the “Where undisputed in- such to authorize different but are are dangerous obstruc- whether a defect is ferences as to quéstion injury, is one to cause tion calculated ‘ McCrady, supra, Memphis jury. City the' fact for City Nash- Batts v. 166, 248; 174 Ténn. S.W.2d supra, 22 1099; ville, Tenn.App. 340, 347, 157 S.W.2d Brown, Nashville v. supra, City Nashville, 182 Tenn. Osborn v. 612, [617]; 185 S.W.2d 510. defect,in “As ns we have seen, before case slabs, pavement that was broken of the were several through depth ‘rough edges’ jagged their with ‘matter of inches n ‘tsharp pieces up’ high, a, sticking somebody injury, which calculated to was cause which on might ‘get pieces at hurt’; and least 'one stick- was ing up high plaintiff’s bicycle so that when struck it, jarred so her that her it threw over the handle forward, violently upon bars, and the sidewalk. light foregoing

“In the con- authorities, and struing favorably plaintiff, the evidence most we as question do, must we think the whether the defect was negligent question jury and actionable was for the that ;(cid:127) jury City, could well from the that the find evidence by neglecting repair negli- was defect, gence proximate legal plain- which cause , injuries. tiff’s strongly urged “It defendant, however, guilty, proximate as a matter of law, con- tributory negligence right barring her action, since injured riding she admitted when she was the bi- cycle on the sidewalk in violation ordinance, of negligence per proximate which was se and cause injuries. assign- “In this we connection, consider defendant’s ments of error based on the admission of evidence that per- made no effort to enforce this old ordinance but bicycles mitted children to make a custom of It sidewalks. is said such evidence in- acquiesced admissible because if even defendant in such repeal justify custom, this could not its vio- the law lation. National Funeral Home Dalehite, App. proper prove we think

.“Nevertheless, it was such acquiescence part custom of the conduct of the parties affording though plaintiff’s inference an that —as negligence actually per was se, conduct not willful it was wrongful, City permitted or only but was other what might reasonably expected children to do and have her n jury might to do. The inferred if defendant have permitted had not other to children she this, do would injured. not have done it and would have been ‘‘. proxi- Thus such evidence was relevant issue of mate guilty cause and whether of con- tributory negligence. jury may The have inferred bicycle she would not have been on side- injured, walk, and would have been but for defend- permitting practice ant’s conduct in this other chil- repair neglecting dangerous dren and in defect; this only and that her conduct was a condition circum- attending injury, stance her defendant’s conduct such, proximate legal injury. cause plaintiff, injured, fact

“The when was vio lating negligence the ordinance, and was thus per right recovery se, would not bar her unless negligence proximate injury. was the of her cause Holt Walsh, v. 180 307, 313, 174 657, S.W.2d [659]; Tenn.App. Sutherland v. 29 Keene, 303, S.W.2d 309, Standridge Godsey, 917, [920]; Tenn. 522, 532, 277, S.W.2d [281]; Adams v. Brown, 262-263, 80, 81. though plain-

“In each those cases, it was held that guilty- negligence per violating tiff was statute, se in a question jury it was, a nevertheless, for the he whether by contributory neg- negligence was barred his —whether ligence proximate injury was the cause his remote or a accompany injury. cause or mere a such circumstance Standridge Godsey, supra, “In defendant’s truck plaintiff’s struck and killed intestate while he walk ing right bridge side violation statute pedestrian requiring such walk on the left side highway. The Trial Court had a verdict directed contributory ground for defendant on deceased’s negligence. reversing, Supreme speaking In our Court, through Chief Neil, Justice said:

“ ‘If we should concede that the deceased was vio- lating negligence per road, se, law of the which is question there remains the of whether or not fault his proximate By weight was the of cause the accident. the authority contributory' negligence' plain- the the municipal violating in tiff the law of the ordi- road, regulating complete nances is un- not a defense traffic, proximaté less it contributes to the the accident as proximate cause. Whether his or not fault was the jury’ (citing cause of the the authorities). accident was supra, plaintiff Brown, '“In Adams v. stat- violated a by overtaking attempting pass ute and another to ve- highways. in hicle an intersection It was held that though plaintiff negligence per se, it was question jury negligence still for the whether such con- proximate contributory negligence stituted such as bar to

6^7 Presiding opinion by Court, thé action-. in'an -There, the Judge -quoted approvingly Am.Jur., from McAmis, : part Negligence, as follows sec. 214; ‘ although plaintiff, does the unlawful, “An act of " protection place as to law the not him outside the of, through negligence injury an him sustained ...another, unless the.unlawful act.has some causal.eon- exception with-the.injury. Accordingly, no ..neetion ¿trust contributory negligence the rule. contribute that. ..by injury próximately . to tha sustained negli- for in an action order to constitute a defense . (cid:127) negli- gence plaintiff’s made is .for .the fact that cpnsists

gence, or ordinance the violation.of a statute ** injured person’s If violation an *. ordinance injury, directly did his unlawful contribute not i’f wbuld his hé action,- conduct is not defense to even- yiolátéd injured ordi- he if have been directly is that which nance. The between distinction helps proximately produces produce a result merely neces- which as an efficient cause and that ’ sary or attendant it.” condition circumstance upon upon the'foregoing the evidence “So, the.question plaintiff’s whether think authorities, we. contributory proximate of the statute such violation question right negligence action, was a barred her support ample jury, evidence to there is. ” jury in her favor. verdict (cid:127) Ap- opinion by foregoing We Court think presented petition peals.-is in the conclusive of issues There, assignments . is no merit in of for certiorari. charge judge relating his of trial error special requests. They charge relaté failure to certain 618 contributory- alleged in

to the defect the sidewalk and plaintiff. charge plaintiff’s negligence The as to City prejudicial of the ordinance was to the violation plaintiff’s Whether Winchester. or not contribu- tory negligence proximately and in- caused the accident jury. jury fairly to the submitted Finally petition by is made contention for counsel by Memphis City that the er case bar is controlled at . 653, v. Tenn. S.W.2d 713 The Dush, Court’s opinion (Burnett, dissenting) in Justice, that case entirely upon Memphis McCrady, based almost v. Moreover We think it dif 162, factually fers from case at bar and should'be confined s . t its own fac

In Batts Nashville, question 123 S.W.2d 1099, the Court held that whether a defect in a street or sidewalk actionable is is height- depth, not determined is one but that it arriving factor in at the result. most, all, In if not liability determining these cases the courts have fol generally accepted injury lowed the is rule “an if actionable not foreseen, or could not have been reasonably anticipated.” foreseen or p. Am.Jur., applied City Memphis and cases cited. It sowas McCrady, supra, and other cases. the rule But is not controlling every any case since number factors and might present important circumstances be on the question liability. fundamentally is Nor sound jury Court hold because the has its verdict applied “foreseeability” this test, and found in favor question legal or defendant, lia bility thereby appeal foreclosed on

619 cannot-agree ruling City We that the of the Court Memphis supra, Dush, v. controls the It case at bar. purpose compare serve no the defects would for us to legal and cases thus undertake to reach con in these important However, have this clusion. we fact which clearly distinguishes present the case the Dush from governing authority City case, viz. of the alleged had' actual Winchester notice of defect repaired told if was sidewalk, some injured. dangerous one would be This condition had (2) years prior to existed for two the accident. judgment record,

We .find no error'in the and the Appeals' the Court of is affirmed.

' Tomlinson, Burnett, Swepston, Justices, concur. ; Prewitt, dissents'. Justice,

Prewitt, Justice, (dissenting). respectfully opinion majority dissent

I from the for following three reasons: First, motion a directed verdict should have been sustained for reason there was no action City. negligence part City Memphis able City Memphis 653, 288 v. 199 Tenn. S.W.2d 713; Dush McCrady, 248; S.W.2d Batts v. Tenn.App. Rye Nashville, 1099; Nashville, 326, 156 S.W.2d 460. injuries The sustained occurred on where the sidewalk by driveway leading was crossed residence Atnip. point At this Herman a sewer line had been placed under sidewalk a meter box been set had the, and a hole been under the sidewalk, con- left pavement. in*the or five of concrete

erete Four slabs ; years two before This defect -had-existed for. about n driveway, were where -it this si'dewálk,. was crossed that, pave- broken'through' looking'at the broken so one (cid:127) n - ment could see dirt under it. driveway .piece 4” 2” x The owner took a placed five con- it over slabs of timber and the four testified, that the lowest and that were he cracked, crete place only place than inches lower in the two cracked driveway. part unbroken proof very pop girl injured. The shows little this a pedestrians been ulous street in and Winchester, day, driveway walking years, night over the and two Municipal Corporations mishap. with no See C.J.S. p. e d. sec. 807 137 and cases therein cit For a second I the motion a-directed reason think for. , injured vejxlict. should been sustained because the have party'was negligence, proximate contributory bicycle upon sidewalk and her act in City Winchester, violation of the ordinance negligence per the’proximate and was cause se> (cid:127) (cid:127) (cid:127) injuries. reasoning majority opinion Third, because the virtually practical purposes, makes, for the munici all palities insurers of sidewalks, Tennessee my majority opinion opinion departure material is a City principles from the stated Nashville, in Batts v. supra; supra; Rye City Memphis Nashville, v. Memphis McGrady, supra, supra. Dush, Though present case are somewhat dif facts yet the-principles cited'cases, ferent in- frortí the above liability approve in cases if we same, are volved place municipalities un- this nature will an against burden, them. warranted

Case Details

Case Name: City of Winchester v. Finchum

Court Name: Tennessee Supreme Court

Date Published: Apr 1, 1957

Citation: 301 S.W.2d 341

Court Abbreviation: Tenn.