# Coleman v. Byrnes > Court of Appeals of Tennessee · September 27, 1950 · 34 Tenn. App. 680 URL: https://www.frixlaw.com/law-library/cases/9767803 ## Case - **Full name:** COLEMAN Et Al. v. BYRNES Et Al. - **Court:** Court of Appeals of Tennessee - **Decided:** September 27, 1950 - **Citations:** 34 Tenn. App. 680; 242 S.W.2d 85; 1950 Tenn. App. LEXIS 162 - **Precedential status:** Published - **Opinion:** Dissent by Swepston - **Judges:** Anderson, Baptist, Swepston - **Cited by:** 21 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9767803 ## Opinion text Swepston, J. (dissenting). I respectfully dissent from the majority in this cause. It seems to me the jury should have been allowed to decide whether a sudden emergency arose. If it did not, there was evidence of negligence. It is clear enough that the truck driver could not reasonably have been expected to see the boys before the plaintiff emerged from behind the huge garbage truck. But the proof is not clear that he suddenly came out immediately behind the garbage truck and headed athwart the path of the defendant’s track. The truck driver so testified, and neither the plaintiff nor any of his witnesses stated specifically how far back of the garbage truck plaintiff was when he emerged or came into the view of the truck driver. No witness stated how far back the boys were when they turned to the left, nor whether it was a sharp or a gradual turn, but there is testimony that before they reached the garbage truck they were proceeding in a leisurely and prudent manner near the right hand curb; the fact that they observed the *697 open door on the garbage truck which caused them to turn to the left indicates they were keeping a lookout ahead, and the inference is justified that they were not too close to the rear of the garbage truck, because they did not stop but kept moving and changed directions perhaps at an obtuse, gradual angle and so came into view of the driver at such an angle instead of being headed across his path. The evidence simply is that when plaintiff did reach the left rear of the garbage truck he was three feet to the left of it and the defendant’s truck was about even with the front of the garbage truck or approximately 35 feet away, as the truck was 40 feet long. The testimony of the driver that the plaintiff suddenly emerged immediately from behind the truck and apparently headed across his path would not have to be accepted by the jury for two reasons. The above direct and circumstantial evidence tend to contradict him. Also, he is contradicted on another material matter; he testified the impact occurred 3 or 4 feet east of the center line of the street, whereas there is evidence that plaintiff was 2 feet west of the center line before the impact and was knocked north and somewhat west of the center line. Moreover, it is clear that neither the driver nor any other witness saw the impact and he could not know where plaintiff was at the time the rear corner of his truck struck the boy. And so it is, we have the driver about 35 feet away when he states he first saw the boy with twelve feet to spare on the right of the truck into which he could turn, because no cars were parked there along the curb, and four feet on his left between him and the boy, with the boy riding three feet away from the side of the garbage truck. *698 In that situation the driver at 25 m. p. h., which is ordinarily not an excessive speed, applied his brakes so quickly and forcefully that when he pulled to the right the rear of the truck was caused to skid on a dry street toward the hoy and strike him. It is apparent, therefore, that the jury would have been warranted in finding- that there was ample space in which plaintiff could have safely passed, that he was attempting to do so in a safe manner, that he was on Ms side of the street, that no emergency existed; that defendant was guilty of negligence in applying his brakes and causing his truck to skid against plaintiff; and that he did not have his vehicle under proper control and was not exercising due care for the safety of others using the street. In this view of the evidence it, therefore, becomes apparent not only was there evidence of negligence of defendant to go to the jury, but also that the question of contributory negligence of plaintiff was for the jury. There is an ordinance relied on by plaintiff which prohibits the riding of bicycles on sidewalks. Plaintiff had a right to be in the street and to use of his side of the street, or to such part of that side as under the circumstances was not in use by the garbage truck, under Code Section 2671. Fuson v. Cantrell, 25 Tenn. App. 608, 609, 614 , 166 S. W. (2d) 405 . It was for the jury to say whether plaintiff was guilty of want of ordinary care in the way he was using the street at the time, under the conflicting evidence. Moreover, the proximate cause of the accident according to the evidence in favor of the plaintiff was the sudden application of the brakes and the turning to the left that caused the rear end to skid against plaintiff, for if *699 this had not occurred there was ample room for the plaintiff to pass safely between the vehicles. The failure to observe the boys before they came from behind the garbage truck is of no value in the case, because they went first to the right and then to the left, which, if anything, would have tended to mislead the driver of the truck. The real, actual duty of defendant when he approached the place where he was to meet and pass the large garbage truck was to exercise care for the safety of others who might be using the street and to anticipate that somebody, whether he saw them beforehand, might come out or from behind the garbage truck, either a workman on the truck or another vehicle or even a pedestrian crossing the street at that point and, therefore, to have his vehicle under control. “He cannot assume that the road is clear, but he must at all times be vigilant and anticipate and expect the presence of others”. Coca-cola Bottling Works v. Brown, 139 Tenn. 640, 645 , 202 S. W. 926 , 928. Defendant in the brief has cited several cases in which the “sudden emergency” rule is stated. Moody v. Gulf Refining Co., 142 Tenn. 280 , 218 S. W. 817 , 8 A. L. R. 1243; Tenn. Elec. Power Co. v. Hanson, 18 Tenn. App. 542 , 79 S. W. (2d) 818 ; Fergason v. Crawford, 24 Tenn. App. 646 , 148 S. W. (2d) 45 . Before we could apply this rule as the case stands before us, we should have to find as a matter of law that an emergency existed. This we cannot do, because the theory of the plaintiff supported by evidence is that Coleman had ample room to pass between the trucks and was attempting to do so and that he did not pull across or toward the path of defendant’s truck; defendant’s theory is that Coleman suddenly emerged from behind the large *700 truck and across the path of defendant and was on the wrong side of the center of the street when struck. This simply makes a conflict in the evidence as to whether an emergency existed, which is a jury question. Getz v. Weiss, 25 Tenn. App. 520 , 160 S. W. (2d) 438 ; 60 C. J. S., Motor Vehicles, Section 257(b) note 14, p. 628. The test of whether it existed and the steps taken to meet it are not to be determined by the driver’s personal judgment or impulse, or nervous disposition, or lack of skill or experience in driving; but by the customary rule of how the ordinarily prudent person would have viewed and acted on the circumstances as they appeared to him. Fergason v. Crawford, supra. I agree with what is said in the majority opinion on the construction of the ordinance requiring one to keep as near the right hand curb as practicable, but I am unable to agree that the evidence shows as a matter of law that the driver was acting as would the reasonable prudent person under the circumstances. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767803. Public record. Not legal advice.