Williams v. Jordan , 208 Tenn. 456 ( 1961 )

Mr. Justice Swepston

delivered the opinion of the Court.

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 un-contradioted 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 mixture of gravel, dirt and grass, on which automobiles are customarily parked on that side of the street B. 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 hump 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 hall 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 hut 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 playing 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 up 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 tbe 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% 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 Test a child too young for discretion and undirected by parents had tucked herself away in an obscure place, beyond the casual and convenient notice of the driver.’ ” 206 N.W. at page 825.

“Verdicts cannot rest on conjecture or surmise. With no evidence to the contrary as to the locus of the decedent immediately prior to its injury, and under the applicable rule of law, we hold that plaintiff has failed to sustain the pleaded negligence *

“ * * * The testimony of the plaintiff does not establish that the point where the child was picked up was the location of the child when the truck started to leave the Nicholson premises. It is nothing more than an hypothesis which attempts to explain a situation. Under the undisputed testimony of the eye witnesses as to the position of the child, it is as reasonable to say that the child was dragged the short distance the car moved after it started. ’ ’ 206 N.W. at page 826.

“It is one thing to have a state of facts from which conclusions may reasonably be drawn; quite another, to hold that one who has the burden of proving a given conclusion has discharged the burden by showing that a theory which sustains him is a possible one, if it also appear that a theory upon which his adversary would not be liable is just as possible.”

A somewhat similar case is Brown v. Liberty Mutual Ins. Co., 1958, 234 La. 860, 101 So.2d 696, in which it appeared that a motorist parked the vehicle in a driveway of the plaintiff where there were 3 children in close proximity to the automobile and the motorist, in starting his vehicle, had no reason to foresee that any one of the 3 children, who were presumably being watched over by the parent, would be permitted to stray unnoticed from a place of safety on the lawn to a position immediately under the right front end of the automobile.

In Owens v. Holmes, 1953, 199 Or. 332, 261 P.2d 383, a mail carrier, although he knew that children had prior to this occasion been about and near this mail box, started off in his usual manner when seeing no one about but later he discovered that he had struck a 3-year old child who was under the right side of the car. Held, he was not guilty of negligence where no children were at or near the mail box when he started.

A similar case is McNeill v. Bullock, 1959, 249 N.C. 416, 106 S.E.2d 509.

In addition to the numerous cases cited in the opinion of the first above mentioned case, the brief cites the following authorities also which lay down the same rule:

O’Neil v. Cochrane, 184 Minn. 354, 238 N.W. 632; Ostrander v. Armour & Co., 176 App.Div. 152, 161 N.Y.S. 961; White v. Edwards Chevrolet Co., 186 Va. 669, 43 S.E.2d 870; Coffey v. Oscar Mayer & Co., 252 Wis. 473, 32 N.W.2d 235, cases reported in 3 A.L.R.2d 753, Blashfield Auto Law and Practice, Vol. 2A, Sec. 1509, citing

Wilson v. City of Long Beach, 71 Cal. App.2d 235, 162 P.2d 658, 163 P.2d 501.

Finally, it is well to recall the rule tliat negligence cannot be inferred from the mere fact of the occurrence of the injury alone. In Nichols v. Smith, 21 Tenn.App. 478, 111 S.W.2d 911, an admission by the driver of a motor vehicle that he did not see the deceased until the latter was on the hood of the vehicle was not evidence that he was not maintaining a proper lookout, in the absence of any evidence that deceased appeared in front of the truck at a distance and in such a position that he could have been seen by the driver. Reid, the judgment for the plaintiff was reversed and the suit dismissed.

Accordingly, we think the two lower courts erred and that a verdict should have been directed in favor of the defendant in the trial court.

Eeversed and suit dismissed.

Burnett and Felts, JJ., dissent.

Amendment to Majority Opinion.

Swepston, Justice.

Now as to the dissenting opinion prepared by Mr. Justice Felts, the following observations of fact and law are in order:

1. His first proposition of fact is that defendant parked in the yard.

That is true, but it has no probative value on the question of negligence for two reasons: (1) the mother herself admitted E. 39 and 58 that he parked where her family and all others had been parking on the gravelled area in front of the stepping stones and 5 or 6 feet from the edge of the street pavement; (2) under all tlie cases cited in both the majority and minority opinions, it matters not whether the vehicle is on the property driveway or in the street, because the question of negligence depends upon the proximity of the child or children to the vehicle and whether the driver ought to be put on notice thereby of a real probability of harm, and not a mere theoretical possibility.

2. The mere fact that children were playing in the yard is insufficient in law, as just stated, supra, and as shown by a proper analysis of the facts in all of the cases. In the present case the record does not show anything other than that the other children were playing on swings, etc., 84 to 90 feet R. 11 northwest of defendants’ vehicle, which makes the distance about one fourth of the length of the average city block; that they were taking no interest in the vehicle; that the infant was under the care of its mother and sitting on the top step of high front steps. If he had seen them, he had a right to assume the mother would not go off and leave the child.

3. Of course, he drove off without looking. Under the just recited situation who would ever have thought of walking around the vehicle and looking under it?

4. The record does not show that any child except the baby was near the vehicle when defendant reentered it. It only shows that this other unidentified child was seen pointing when the mother heard the scream and looked out the window R. 44, 48, 65. That child could have been any distance away up the yard.

Now, as to the cases, no fault can be found with any cases cited in the dissenting opinion, because the evidence in each made a jury question. But in not a single case are the facts analogous to undisputed facts of the instant case.

In the first case, Stein v. Palisi, 308 N.Y. 293, 125 N.E. 2d 575, the location of the accident was a fifteen foot wide private dead end access road surfaced with cinders and rough stones. Toward the dead end were four small bungalows on the ‘ ‘ left side ’ ’ with lawns fifteen to twenty feet wide, or a total of 60 feet.

The first was occupied by the Steins. Their 19-month old baby, the injured party, with a 3-year old sister and other children were playing on the lawn in front of bungalow No. 2 when a taxicab was driven into this narrow road at a rapid rate of speed past the children up to the third or fourth bungalow, where it pulled on to the lawn, discharged its passengers, drove rapidly back and in some way struck this baby either on the edge of the grass or in the street.

This was an obvious case of fast and recldess driving in immediate proximity to children; the opinion so charac-terises it.

The second case, in Tupman’s Adm’r v. Schmidt, 200 Ky. 88, 254 S.W. 199, is certainly not in point either. This truck driver saw this 6-year old child behind his truck— a place of danger and unattended — -before he entered his cab to leave. He put the child on the sidewalk and told him to stay there. Then having entered the cab it took 4 or 5 attempts to start the motor. Then he stepped to the sidewalk, looked back, saw some other children playing a short distance away but did not see the deceased among them or elsewhere; he did not say, however, that he went back to the rear of the truck to look. He backed over the child. Of course, that was a jury question.

Cunningham v. Sublett’s Adm’r, 306 Ky. 701, 208 S.W.2d 509. This is another case where these children came aronnd the gasoline track unattended and a place of danger. It follows Tupman’s, supra. The driver after knowing this 16-months old hoy and his 5-year old sister had been right at the truck, assumed the hoy was 20 feet away from the truck when he started forward, but the child was really in front and was killed.

Lovel v. Squirt Bottling Co., 234 Minn. 333, 48 N.W.2d 525, 530. This case brings out the very point of distinction between that line of cases on the facts and the instant case like Williams v. Cohn cited in the majority opinion.

There the driver accustomed to making deliveries to this store, in which the family lived, knew these children usually played on the driveway and about the truck and on this occasion they were doing so. In fact, he had ridden the 5-year old boy on the pushcart before hanging it back on the front of the track. He was aware that the 16-months old girl, who was run over, had been playing right at the front of the truck and when he moved forward about a foot she was still there and was run over.

The opinion has this to say in distinguishing the facts of the ease from the earlier Minnesota case of O’Neil v. Cochrane, supra, and Williams v. Cohn, supra:

“In each of the cited cases, the court noted that the truck driver had not seen the injured child in the vicinity prior to the accident, and hence was not under obligation to exercise a higher degree of care commensurate with such knowledge. In each case, the evidence disclosed that the driver had discharged his applicable duty of exercising ordinary care. In the present case, * # *, if the jury determined that Aldridge knew of the presence of Janis near the truck shortly prior to the accident,” (it became a jury question of negligence.)

Now, if reference will be made back to the facts of Williams v. Cohn, supra, it will be seen that the driver had seen the children on the front porch with their mother, and the driveway obviously ran alongside the residence, but he had not seen them in the ‘ ‘ near vicinity ’ ’ of the truck.

That is exactly what the opinion means in the case under discussion, because (1) those are the facts in it and (2) it uses exactly the phrase “near vicinity” on page 529 of 48 N.W.2d.

Then in the case of Coca Cola Bottling Co. of Black Hills v. Hubbard, 8 Cir., 203 F.2d 859, where the truck driver drove up and parked in front of the store in the midst of 5 or 6 children playing there where he had seen them doing so on prior occasions. That opinion quotes and adopts the distinction made in Lovel v. Squirt Bottling Co., immediately supra, and on page 863 syb. (9) of 203 F.2d states:

“* * * parks * * *in the midst of, or alose proximity.”

Finally, the statement in the dissenting opinion, that some of the older cases broadly state the rule that no duty rests upon a driver to look around and under the vehicle before starting, is not correct.

The rule is and has all along been the same, as shown by the cases cited in both the majority and the dissenting opinions, both of which cite recent cases. Proper application of the rule is the point.

The fact is that the dissenting opinion attempts to apply the rule too broadly.

The effect of applying the true rnle to the facts of the instant case would be to require every operator of a motor vehicle to get ont and look all aronnd and under the vehicle before starting same, regardless of whether the vehicle is parked in a public or a private driveway or along curbside, if, as there always are during free hours, children are in the general area or vicinity, regardless of the fact that none has been or is in a position of danger, or interested in the vehicle or the driver, or is an infant left unattended, or is in “close proximity” or the “near vicinity.”

Such a misapplication of the true rule would be a useless sacrifice of substance to form.