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Keywords

tortplaintiffdefendantnegligenceappealtrialadoptioncomparative negligencejury instructions

plaintiffdefendantnegligencetrialadoptionsustainedcontributory negligencecomparative negligencewrit of certiorari

Related Cases

Street v. Calvert, 541 S.W.2d 576

Facts

Doris C. Street was walking across Hale Road to her mailbox when she was struck by a vehicle driven by David Calvert. The accident occurred while it was lightly raining, but visibility was clear. Witnesses testified that Mrs. Street was near her mailbox when the vehicle struck her, and there was evidence of a skid mark indicating the driver attempted to stop. The driver claimed he did not see Mrs. Street until it was too late, but other evidence suggested he could have avoided the accident.

Doris C. Street was walking across Hale Road to her mailbox on the opposite side from her residence when she was struck by an automobile driven by David Calvert and owned by his father Joe Calvert. She sustained serious injuries that resulted in her death more than seven (7) months after the accident, during which time she was unable to relate what occurred.

Issue

Did the trial court err in failing to instruct the jury on the doctrines of discovered peril and last clear chance, and should the court consider the adoption of a rule of comparative negligence?

We granted the writ of certiorari in this case and expressly limited consideration to the following: (1) the effect of the failure of the trial judge to instruct on the doctrines of discovered peril and last clear chance; (2) is the posture of this case such that this Court may properly consider the adoption of a rule of comparative negligence; (3) the propriety of adopting such a rule; and (4) the type of comparative negligence which should be adopted.

Rule

The court adopted sections 479 and 480 of the Restatement of the Law of Torts, 2d, which state that a plaintiff who has negligently subjected himself to a risk of harm may recover if the defendant is negligent in failing to utilize with reasonable care and competence his opportunity to avoid the harm, knowing of the plaintiff's situation.

In our opinion the holding of Todd is that Tennessee recognizes discovered peril and discoverable peril at least where defendant is engaged in activity hazardous to the public; that if the plaintiff is guilty of gross negligence as a matter of law he can only avail himself of discovered peril.

Analysis

The court found that there was sufficient evidence for a jury to determine that the defendant driver knew of the plaintiff's situation and realized she was inattentive and unlikely to discover her peril in time to avoid harm. The court emphasized that the defendant's negligence in failing to act upon this knowledge could have been a proximate cause of the accident, thus falling within the last clear chance doctrine.

Thus, in our opinion there was evidence from which the jury could have found that the defendant knew of the plaintiff's situation, realized or had reason to realize that the plaintiff was inattentive and unlikely to discover her peril in time to avoid the harm; and that the defendant was negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.

Conclusion

The Supreme Court reversed the trial court's judgment and remanded the case for a new trial, emphasizing the need for proper jury instructions on the last clear chance doctrine.

Reversed and remanded for new trial.

Who won?

The administrator of Doris C. Street's estate prevailed in the appeal because the Supreme Court found that the trial court had erred in its jury instructions regarding the last clear chance doctrine.

The only error we find was the failure of the trial judge to give an instruction to the jury on the doctrine of last clear chance, an exception to the contributory negligence rule, recognized in various forms by the courts of Tennessee since before the turn of the century.

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