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11/30/56 Patrick A. MURRAY v. CITY OF NASHVILLE et al.
COURT OF APPEALS OF TENNESSEE

Patrick A. MURRAY
v.
CITY OF NASHVILLE et al.



[3]    299 S.W.2d 859, 42 Tenn. App. 161

[4]    November 30, 1956

[5]    Certiorari Denied by Supreme Court April 1, 1957.

        1956.TN.194 <http://www.versuslaw.com> [6]    APPELLATE judges:

[7]    FELTS and HICKERSON, JJ., concur.

[8]    DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SHRIVER

[9]    The plaintiff, Patrick A. Murray, sued the defendants for $ 35,000, damages and for $ 15,000 punitive damages for personal injuries incurred when he fell while attempting to walk across Union Street at a point a short distance East of its intersection with 6th Avenue North in Nashville, Tennessee.

The declaration is in two counts. The first count alleges that the plaintiff stepped on a broken concrete gutter adjacent to the sidewalk, lost his footing and tripped and fell on a dangerous ditch which was located some 20 inches, more or less, from the curbing on the North side of Union Street, and extended across the path of all pedestrians who had to cross said intersection. It further alleges that the ditch was placed and left in Union Street as a result of a street lighting system being installed during the latter part of the summer months of 1954 and at the time of the accident. Said installation was made pursuant to a contract between the Electric Power Board of the City of Nashville and Edenfield Electric, Inc., which concern contracted with Bush Building Company for the actual excavation of the ditch and guttering.

The second count alleges a violation of Chapter 32, Sec. 33, of the Nashville City Code, which provides that every person who shall dig or cause to be dug any excavation in a street shall have it guarded with a barrier or danger signal, it being alleged that no such barrier or danger signal was erected at the place of the accident in conformity with the provisions of said section of the City Code.

All the defendants filed pleas of general issue and the case was tried before Judge Richard P. Dews and a jury in the First Circuit Court of Davidson County and resulted in a jury verdict and judgment for the defendants.

After motion for a new trial was overruled the case was duly appealed in error to this Court.

There is no essential conflict in the material evidence.

The plaintiff and one other witness, a young man named Giovanni Zasso, are the only two persons who witnessed the accident.

The plaintiff, who was 88 years old at the time of the accident, was an active man who was accustomed to walk from his home out on State Street to the Court House where he worked. On Sept. 10, 1954, at about 5 o'clock P.M. he was walking westwardly on the north side of Union Street. When he reached a point about seven feet east of the east line of the pedestrian crosswalk which is marked at the intersection of Union Street and Sixth Avenue, he stopped at a light post which was near the edge of the curb, put his right hand on said post and looked to his left, or eastwardly, on Union Street, and seeing no approaching vehicles, he stepped from the sidewalk to the street, whereupon, his foot slipped, or he tripped and fell, breaking his hip.

The witness Zasso was across the street and saw plaintiff as he was in the act of falling, and went to his aid. With another person he helped plaintiff to Davitt's store on Sixth Avenue, where he was later picked up by an ambulance and carried to the hospital.

Plaintiff, after relating that he stood on the pavement and put his hand on the light post and looked to see if the way was clear, stated,

'So I stepped out and my feet went out from under me and I went down. I didn't really know what happened to me until I tried to get up and couldn't and I tried to pull myself up.'

When asked to describe the condition of the street at the point at which he fell, he stated,

'The street condition? Well, I am sorry, no, I couldn't do that. I didn't look down to see if there was anything there, I just simply looked to see if I had the way clear, and when I did step my foot went out from under me and I fell.' (Tr. p. 10)

On cross-examination he testified:

'Q. You don't know what your foot slipped on and why it was that you slipped? A. No, no, I didn't look down to see but I know it was something, I slipped there.'

Plaintiff testified that he knew, at the time, that construction of the city street lighting program was under way and that there were ditches in many of the city streets. In fact, the plaintiff had fallen only nineteen days before on Seventh Avenue where there had been an excavation, but, fortunately, was not seriously injured.

The evidence shows that plaintiff fell in the street about seven feet east of the east line of the marked crosswalk which is at the intersection of Union Street and 6th Avenue North, and was lying on his back in the street with his head towards the sidewalk and his feet towards the center of the street.

There was some dirt or other material against the sidewalk, adjacent to the light post where plaintiff started to cross the street. This dirt or material was piled up almost level with the top of the sidewalk and extended out about a foot, or a ...


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