jury question presented on defect in sidewalk and bicyclist’s contributory negligence in riding on sidewalk contrary to ordinance
How later courts described this case
- jury question presented on defect in sidewalk and bicyclist’s contributory negligence in riding on sidewalk contrary to ordinance
Written by the judges who cited it.
The opinion
Prewitt, Justice,
(dissenting).
I respectfully dissent from the majority opinion for the following three reasons:
First, the motion for a directed verdict should have been sustained for the reason that there was no actionable negligence on the part of the City. City of Memphis v. Dush 199 Tenn. 653 , 288 S.W.2d 713 ; City of Memphis v. McCrady, 174 Tenn. 162 , 124 S.W.2d 248 ; Batts v. City of Nashville, 22 Tenn.App. 418 , 123 S.W.2d 1099 ; Rye v. City of Nashville, 25 Tenn.App. 326 , 156 S.W.2d 460 .
The injuries sustained occurred on the sidewalk where it was crossed by a driveway leading to the residence of Herman Atnip. At this point a sewer line had been placed under the sidewalk and a meter box had been set in the, sidewalk, and a hole had been left under the con- *620 erete pavement. Four or five slabs of concrete in*the ; This defect -had- existed for. about two years before the si'dewálk,. where -it was crossed by this driveway, ■ were broken'through' so that, one looking'at the broken pavement could see dirt under it. ■ - •
The owner of the driveway took a 2” x 4” .piece of timber and placed it over the four or five slabs of concrete that were cracked, and he testified, that the lowest place in the cracked place was only two inches lower than the unbroken part of the driveway.
little girl was injured. The proof shows this a very populous street in Winchester, and pedestrians had been walking over the driveway for two years, night and day, with no mishap. See 63 C.J.S. Municipal Corporations sec. 807 p. 137 and cases therein cited.
For a second reason I think the motion for. a-directed vejxlict. should have been sustained because , the injured party'was guilty of proximate contributory negligence, and that her act in riding a bicycle upon the sidewalk in violation of the ordinance of the City of Winchester, was negligence per se> and was the’proximate cause of her injuries. • • • .
Third, because the reasoning of the majority opinion virtually makes, for all practical purposes, the municipalities of Tennessee insurers of its sidewalks, and in my opinion the majority opinion is a material departure from the principles stated in Batts v. City of Nashville, supra; Rye v. City of Nashville, supra; City of Memphis v. McGrady, supra, and City of Memphis v. Dush, supra. Though the facts in the present case are somewhat different frortí the above cited'cases, yet the-principles in *621 volved are the same, and if we approve liability in cases against municipalities of this nature it will place an unwarranted burden, on them.