McCandless v. Oak Constructors, Inc. , 1976 Tenn. App. LEXIS 214 ( 1976 )

SHRIVER, Presiding Judge,

partially dissenting.

I concur in the Opinion written by Judge Todd in overruling all assignments except the assignment that there is no substantial material evidence to support the verdict wherein plaintiff McCandless, the passenger in Parker’s car, was denied a recovery in any amount.

He was not charged with any negligence, remote or proximate, and none was shown. On the other hand, it cannot be successfully contended that the defendant truck driver was pure, lily-white and completely free of negligence which proximately contributed to the collision in which McCandless was injured.

The day was clear, the stopped car in which McCandless was a passenger was plainly visible opposite a driveway on the left, so that ordinary care dictated that Jackson, the truck driver, slow down and be on the alert for a movement of the car which might be reasonably anticipated. Instead he pulled first to his left and then to the right but was going too fast to avoid striking the rear of the Parker car.

I would sustain the assignment, reverse as to McCandless and remand for a new trial of his case.