Ewing v. Birthright

448 S.W.2d 71, 60 Tenn. App. 454, 1969 Tenn. App. LEXIS 327
CourtCourt of Appeals of Tennessee
DecidedAugust 29, 1969
StatusPublished
Cited by6 cases

This text of 448 S.W.2d 71 (Ewing v. Birthright) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ewing v. Birthright, 448 S.W.2d 71, 60 Tenn. App. 454, 1969 Tenn. App. LEXIS 327 (Tenn. Ct. App. 1969).

Opinion

TODD, J.

In these consolidated cases, the plaintiffs, Christine Ewing and Robert L. Ewing, have appealed in error from jury verdicts and judgments dismissing their [456]*456suits against defendant, Thomas W. Birthright, for personal injuries, medical expenses and. property damages arising out of a motor vehicle collision.

Prior to' the collision, defendant was driving his vehicle behind plaintiffs’ vehicle, westbound, on Victory Memorial Bridge, a,t the western end of which there is an intersection with First Avenue. On signal from a police officer, plaintiffs’ vehicle began a turn left (south) onto First Avenue when a third vehicle made an unexpected and unauthorized movement across the path of plaintiffs ’ vehicle, requiring plaintiffs’ vehicle to be stopped suddenly. At the time of the stop, the right rear of plaintiffs ’ vehicle remained in the path of defendant’s vehicle and was struck by defendant’s vehicle, producing the damages sued for by plaintiffs.

The first assignment of error is as follows:

“The verdict of the jury is contrary to the weight and preponderance of the evidence.”

This assignment cannot be considered in this Court. Leach v. Leach, 52 Tenn.App. 606, 376 S.W.2d 739 (1963); Howard v. Dewey Motor Co., 50 Tenn.App. 631, 363 S.W.2d 206 (1961); Bankhead v. Hall, 34 Tenn.App. 412, 238 S.W.2d 522 (1950).

The second and third assignments of error are:

“II. The Court erred in declining to charge Plaintiffs’ Special Bequest No. 1, seasonably made, reading as follows *.
‘I further instruct you that there is imposed upon the operator of vehicles following other vehicles in a long slow-moving line of vehicles the duty to have his vehicle [457]*457under such, control and at such distance from the oar ahead of him that when a sudden stop- is made in case of an emergency he can bring his vehicle to a standstill without striking the one immediately in front of him. Russell v. Furniture Renewal Co., 177 Tenn. 525, 151 S.W.2d 1066 (1941) ’ ”
“III. The Court erred in declining to charge Plaintiffs’ Special Bequest No. 3, seasonably made, and reading as follows:
‘I instruct you that no signal is required to be given by the driver of an automobile in case of an emergency if the time is too limited to' give the required or adequate signal, provided the person otherwise required to give the signal did not create the emergency by some negligent act of his own. [This charge was expressly approved in Sellers v. American Industrial Transit, 35 Tenn.App, 46, 242 S.W.2d 335 (1951)].’ ”

The record before this Court is not in proper condition for consideration of these two (II and III) assignments of error.

At the conclusion of the principal charge of the trial court is found only the following:

“Any thing else?
(Special Bequests submitted).”

No other reference to special requests for instructions or their contents is found in the bill of exceptions.

In a large envelope which accompanied the Technical Record and Bill of Exceptions to this Court are found two depositions, a map marked “exhibit 1” without other authentication, and two papers marked “Plaintiffs’ [458]*458Special Bequest No. 1” and “Plaintiffs’ Special Bequest No. 2.” Each, of the latter two papers hears the notation, “July 3, 1968 Declined J. L. XL”, but no authentication by the judge or clerk of the trial court. No paper is found purporting to be “Plaintiffs’ Special Bequest No. 3,” referred to in the third assignment of error.

There, is little doubt that “Plaintiffs’ Special Bequest No. 1” is the same instrument referred to- in the second assignment of error. There is little doubt that the notation “July 3, 1968 Declined J. L. U.”' indicates that the request was submitted and declined on July 3, 1968, which was the final date of trial of this cause. Said “Plaintiffs’ Special Bequest No. 1” is not, however, made a part of the transcript which has been certified to this Court, hence technically and legally cannot be considered. Hayes v. Gill, 216 Tenn. 39, 390 S.W.2d 213 (1965), Gordons Transports, Inc. v. Bailey, 41 Tenn.App. 365, 294 S.W.2d 313 (1956), and authorities cited therein.

Nevertheless, for whatever comfort it may be to the plaintiff, the second assignment of error has been informally considered. Even if the record were in proper order, the assignment could not be sustained.

In Russell v. Furniture Renewal, Inc., cited supra, there was, indeed, “along, slow-moving line of vehicles,” composed of the plaintiff, Mrs. Bussell, following the Furniture truck which was following three other vehicles. All five vehicles were stopped at a traffic light. When the traffic light displayed green, all five vehicles moved forward very slowly about three car lengths when the leading vehicle, a taxi, stopped requiring a stop by the four other vehicles. All vehicles except the last stopped. The last, operated by Mrs. Russell, collided with the rear of [459]*459the Furniture Renewal truck. Mrs. Russell sued the truck driver, Hagier, and his employer, hut a jury dismissed her suit. In affirming the jury verdict, the Supreme Court said:

“(2,3) We are further of the opinion that Hagier was not guilty of any negligence, while the plaintiff was guilty of contributory negligence in not having her automobile under control under the circumstances of this case.

“In 47 A.L.R., 703, the annotator said:

‘The general rule is that, although ordinarily a signal warning vehicles in the rear is necessary when the vehicle in front is stopped, nevertheless there is imposed upon the operators >of the rear vehicles the corresponding duty of having their vehicles under such control as to be able to stop in time to prevent running into the' car ahead in case the latter vehicle comes to a sudden stop in case of an emergency or in obedience to traffic signals.’
“ (4,5) Many cases are cited in support of the text; also, in annotations in 24 A.L.R., 508, 62 A.L.R. 970, and 104 A.L.R., 485.
“Such a rule is practical, sensible, and necessary, for it is a well-known fact that in a long, slow-moving line of vehicles the procession is likely to come to a sudden stop at any time; and it is therefore the duty of an operator of an automobile to have his vehicle under such control and at such a distance from the car ahead of him that when such sudden stop is made he can bring his machine to a standstill without striking [460]*460the one immediately in front of him.” 177 Tenn. pp. 531, 532, 151 S.W.2d 1066, 1068.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
448 S.W.2d 71, 60 Tenn. App. 454, 1969 Tenn. App. LEXIS 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ewing-v-birthright-tennctapp-1969.