252 F. 359 | 6th Cir. | 1918
Action to recover damages for personal injuries sustained by S'chlugleit, plaintiff below, through alleged negligent operation of an automobile in Memphis, Tenn., on the evening of January 18, 1917. The automobile was owned by the Patterson Transfer Company, defendant below, and operated by Walter E. Eott, superintendent of defendant’s warehouse department, and the injuries were inflicted within or near the intersection of Exchange
The plaintiff called Lott, who in substance testified: That while going in a Ford runabout from the company’s warehouse to its office on Second street “the eletcric - headlights blew out, probably caused by an oversupply of gasoline which was permitted to get into the engine”; that upon discovering this he “stopped and lighted his front oil light.” While on Second street, and nearing Exchange avenue, “just a short distance north of the crossing where pedestrians would pass,” he “became blinded by an automobile with a very bright light, and felt his car come in contact with something, but had no idea what it was.” Lie then turned into Exchange avenue “to avoid traffic.” He returned, however, and “saw an elderly man near the middle of Second street, a short distance north of Exchange avenue,” who was being assisted to his feet by another man, and Lott then removed the injured man, plaintiff, to the home of his friend. Lott further stated that in going south on Second street he overtook a horse-drawn wagon, a large express wagon, and followed it “for the distance of about a half block,” at a speed of “about six miles an hour,” until the wagon turned west into Exchange avenue. He says that his oil lamp afforded enough light to “see 20 feet ahead”; that an arc light was in operation at the intersection of Second street and Exchange avenue, “so that one could see a man crossing at the intersect ion”; that he “felt the impact (collision with plaintiff) on the left front of the car about on a line with the front left wheel”; that he was then driving his car on the west side of Second street, about half way between the curb and the middle of the street; that he was “keeping a lookout on approaching the crossing, and there was nothing” between his car and the express wagon before he was blinded.
We may here recur to plaintiff’s entrance upon the Second street crossing. His testimony would naturally have been accepted upon the motion to direct, in view of the darkness and the position of defendant’s car behind the unlighted express wagon. Further, plaintiff might well have progressed so far on the crossing as not to have observed (and in view of his deafness he probably would not have heard) the approach and passage of the express wagon behind him, and still have been overtaken and struck by defendant’s car; indeed, he must have walked nearly half the distance along the crossing before the express wagon turned into Exchange avenue, or defendant’s car turned away from tiie wagon and toward the point of collision. These conditions were not affected by the fact, if it was a fact, that several cars, including the express wagon, approached the intersection shortly before plaintiff had reached the middle of the crossing; this is but common experience as respects the movements of automobiles; such a circumstance certainly cannot be said as matter of law to be inconsistent with the testimony of plaintiff that, upon entering the crossing, he looked in all directions and saw nothing coming; we need not repeat that the darkness was calculated to conceal both the unlighted express wagon and defendant’s car immediately behind it.
“See. 505. Regular street crossings for persons on foot shall *be at points from one corner of a street or alley directly at right angles with the street or alley, and this whether any footway is specially placed along said line or not.”
“Sec. 506. Foot passengers, crossing streets or alleys at points marked out by ordinances as regular crossings, shall have precedence or right of way over all vehicles.”
In Leach v. Asman, supra, 130 Tenn. 515, 172 S. W. 303, the Supreme Court of Tennessee apparently recognizes the right of a municipality of the state to prescribe locations for street crossings. Upon the motion to direct, neither the court nor the counsel appear to have made any allusion to the ordinance, though in the course of the charge a question relating to it arose, which will be considered later. Whatever legal effect, if any, may be ascribed to section 506 of the ordinance, certainly the provision could not have been helpful to defendant under its motion to direct; nor is it necessary here to consider the provision, since the assignment as to denial of the motion is fairly met by the general rule, before pointed out, touching the respective rights and duties of persons using a street.
The remaining assignments of error concern two statements contained in the general charge. One was:
*365 “The undisputed evidence is that the plaintiff left the west side of Second street and that he was found about the middle of Second street.” ,
This was modified later by a further statement to the jury:
“You are the exclusive judges of the weight of the evidence and the credibility of the witnesses.”
The idea that the direction plaintiff pursued on the crossing was west, and not east, before alluded to, grows out of the testimony of Roll that plaintiff did not pass between the express wagon and his car. It is claimed that this was opposed to plaintiff’s testimony that he entered the crossing at the west side of Second street and walked east until he was struck by the automobile. If he had been walking west, he hardly could have been struck, as he was, on his left side by Lott’s car. We cannot .think it important to dwell upon this feature of the defense. Lott’s statement was calculated to expose the meagerness of liis lookout, rather than to contradict the testimony of plaintiff.
It results that the judgment must be affirmed, and an order will be entered accordingly, though we cannot assent to- the claim made that the writ of error was prosecuted merely for delay, and hence the allowance of damages asked under our rule 26 is denied.
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