Smith v. Kifer

Decision Date01 May 1951
Docket Number6 Div. 124
Citation36 Ala.App. 79,52 So.2d 399
PartiesSMITH v. KIFER.
CourtAlabama Court of Appeals

Keith & Davis, of Bessemer, for appellant.

Lipscomb & Brobston and Jas. M. Hamrick, all of Bessemer, for appellee.

Plaintiff's complaint is as follows: 'Plaintiff claims of defendant the sum of Three Hundred Dollars ($300.00) damages, for this, to-wit: that heretofore on to-wit: September 17, 1949, plaintiff's automobile was in charge of her husband and stopped on Clarendon Avenue, near its intersection with Fourteenth Street, in the City of Bessemer, Alabama, and at said time and place while said automobile was so stopped for a traffic light defendant's agent, servant, or employee, who was then and there operating an automobile truck in the course of his employment for said defendant, on said Clarendon Avenue, at its intersection with said Fourteenth Street, in said City of Bessemer, a public highway; and approaching plaintiff's automobile at said time and place, and in so doing the defendant's servant, agent or employee, then and there acting within the line and scope of his employment for the defendant, so negligently operated said automobile truck as to cause it to strike, run over, upon or against the automobile of plaintiff, and as a proximate consequence of the negligence of the defendant's servant, agent or employee, then and there acting within the line and scope of his said employment, plaintiff's said automobile at said time and place, and as a proximate consequence of the negligence of defendant's servant, agent or employee, then and there acting within the scope of his employment for the said defendant, was damaged in this: That the front end of plaintiff's said automobile was mashed and crushed, the lights and steering apparatus, and the hood and body were mashed, twisted and bent, all to the damage of the plaintiff in the sum of to-wit: Three Hundred Dollars ($300.00).'

Defendant's demurrer to the complaint contained the following grounds:

(1) The complaint fails to state a cause of action against the defendant in that said complaint charges negligence against the automobile truck and not against said defendant. (2) Because the time and place of said accident are vague, indefinite and uncertain. (3) Because the averments that said automobile truck was caused to strike the automobile of plaintiff is a mere conclusion of the pleader and is unsupported by any sufficient averment of facts. (4) Because said complaint fails to show that the plaintiff suffered the injury and damages as a proximate result of any negligence on the part of the defendant or her servant or agent.

CARR, Presiding Judge.

This is a suit by Mrs. Bell S. Kifer against Mrs. O. R. Smith.

The complaint claims property damages to plaintiff's automobile incident to a collision at an intersection of two streets in the city of Bessemer, Alabama. In the court below damages were awarded in the sum of $300.00 in favor of the plaintiff.

We do not think there was any prejudicial error in the action of the court in overruling the demurrers to the complaint. It may be stated that the count could have been more accurately drafted to avoid some omissions and some repetitions. However, unquestionably the complaint states a cause of action, and the claimed defects relate to matters which were not in conflict in the evidence. Atlantic Coast Line R. Co. v. Jackson, 225 Ala. 652, 144 So. 813; Woodson v. Hare, 244 Ala. 301, 13 So.2d 172; Smith v. Tripp, 246 Ala. 421, 20 So.2d 870; Britling Cafeteria Co. v. Irwin, 229 Ala. 687, 159 So. 228; Tyson v. Winter, 225 Ala. 437, 143 So. 460; Bennett v. Bennett, 224 Ala. 335, 140 So. 378.

It is urged that the motion for a new trial should have been granted because (1) the verdict was excessive, (2) the verdict was contrary to the great weight of the evidence.

The repair bill for the damage to plaintiff's car was $154.00. This alone does not form the criterion for the assessment of the damages to the car. Whether or not the automobile was fully restored to its former value by the repairs related to other factual circumstances. A witness testified that the difference in the reasonable market value of the car before and after the collision was $300.00. There was no evidence to the contrary. Apparently the jury accepted this estimate as a basis for their verdict. Clearly the judgment finds support in the proof in this aspect.

The collision in question occurred at the intersection of Clarendon Avenue and Fourteenth Street. A traffic light was in operation at this point.

It appears that an overpass bridged Clarendon Avenue and that as the appellant's truck approached the intersection there was a visible sign reading 'Danger. Street Crossing 75 feet ahead.' The abutments or wings to the bridge afforded some obstruction to a clear view to those entering the intersection.

Appellee's car was proceeding north along the avenue. The driver came to a stop at the intersection in observance of a red signal light. Appellant's truck was traveling south on the same avenue. A Mr. Fowler was en route east along Fourteenth Street. His automobile and appellant's truck entered the intersection and collided. The truck struck appellee's car and this impact caused the claimed damages.

There is an irreconcilable conflict in the evidence as to the speeds of the truck and Mr. Fowler's automobile. There is a dispute also with reference to the traffic light signal colors as these two vehicles came into the intersection.

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5 cases
  • Hunt v. Ward
    • United States
    • Alabama Supreme Court
    • March 24, 1955
    ...209 Ala. 580(10-11), 96 So. 773,--nor to sustain it. Montgomery City Lines v. Callahan, 247 Ala. 23, 22 So.2d 339; Smith v. Kifer, 36 Ala.App. 79(7), 52 So.2d 399. That is the status of the written statement signed by plaintiff's truck driver, which was offered in evidence, and to which obj......
  • Lightfoot v. City of Birmingham
    • United States
    • Alabama Court of Appeals
    • May 1, 1951
  • Pearson v. Fountain
    • United States
    • Alabama Supreme Court
    • August 25, 1966
    ...of law to keep a special lookout for other vehicles when a driver is observing the rules relating to traffic signals. Smith v. Kifer, 36 Ala.App. 79, 52 So.2d 399. This presumption, however, does not obtain under all conditions, and the general duty to operate an automobile with careful and......
  • Walker v. Ergon Trucking, Inc., Civil Action No. 1:18-cv-594-ACA
    • United States
    • U.S. District Court — Northern District of Alabama
    • November 19, 2020
    ...a special lookout for other vehicles when a driver is observing the rules relating to traffic signals." Id. (citing Smith v. Kifer, 52 So. 2d 399, 402 (Ala. Civ. App. 1951)). This is because, in the absence of actual knowledge that the intersection is a dangerous one, "[a]n operator of a mo......
  • Request a trial to view additional results

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