Birmingham Ice & Cold Storage Co. v. Alley, 6 Div. 385.

• Decision Date: 20 December 1945
• Docket Number: 6 Div. 385.
• Citation: 247 Ala. 503,25 So.2d 37
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM ICE & COLD STORAGE CO. v. ALLEY.

25 So.2d 37

247 Ala. 503

BIRMINGHAM ICE & COLD STORAGE CO. v. ALLEY.

6 Div. 385.

Supreme Court of Alabama

December 20, 1945

Rehearing Denied March 7, 1946.

Appeal from Circuit Court, Jefferson County; Whit Windham Judge. [Copyrighted Material Omitted]

London & Yancey and Chas. W. Greer, all of Birmingham, for appellant.

Taylor Higgins, Koenig & Windham and Francis H. Hare, all of Birmingham, for appellee.

THOMAS Justice.

The suit was for personal injury. The verdict of the jury was for defendant. The only assignment of error challenges the action of the trial court in granting plaintiff's motion for a new trial.

The uncontradicted testimony in this case showed the following facts: Appellant is in the ice business. On June 2, 1944, one of its trucks was parked in front of a grocery store. The truck contained ice which was being delivered to customers by Jack Foster, operator of the truck. The grocery store in question was situated on 11th Avenue North near 13th Street in the City of Birmingham. When the truck was parked the driver headed it into the curb at an angle not exceeding 45 degrees. The driver went into the grocery store to make delivery of ice.

During the driver's absence the minor son of appellee together with another young boy by the name of Richard McCleney went up on a step attached to the back of the truck and leaned over into the truck to get small pieces of ice. The deceased was standing on the left side of this step and Richard was standing to his right.

Appellee's evidence tended to show that while the boys were thus engaged the truck driver Jack Foster appeared in the door of the grocery store and made a face at the boys, stamped his foot and said 'scat.' These boys were well acquainted with Foster and frequently theretofore climbed on his truck to get ice. Occasionally he would give them ice. When Foster, the driver would see the boys on the truck he would holler 'scat' and the boys would 'laugh at him and run.'

On the occasion of the instant accident, Foster appeared at the door of the grocery store when a trailer-tractor was moving slowly down 13th Street traveling at a speed of not more than five miles an hour, and the path of this trailer-tractor was about four feet from the outer edge of the truck. When Foster stamped his foot and said 'scat' Richard McCleney jumped off to his right. The deceased jumped off the truck to his left against or under the trailer-tractor. Behind said ice truck, and at a distance not mentioned in the evidence, a bread truck was parked. So much for the locus in quo.

There was no evidence that deceased ever saw Jack Foster when he appeared at the door of the grocery store, for the uncontradicted evidence shows that at that time he was leaning over inside the truck getting a piece of ice. There was no evidence that deceased heard Foster stamp his foot or say 'scat'. However, it is uncontroverted that he did jump when Foster said 'scat'. Whether he jumped for the reason that Richard jumped off the ice truck or because he heard Foster say 'scat' is a matter of inference. There was no evidence that the deceased was frightened or had reason to be frightened. Foster's conduct on the occasion was such as was ordinary under the circumstances and well known to plaintiff's intestate. There was no evidence that deceased could not have moved to his right or to his rear or remained stationary with perfect safety. All of the evidence tended to show that deceased was a trespasser on the truck at the time of the accident. The case was submitted to the jury on the theory that if Foster actually discovered the deceased in a position of safety where, if he moved that position, he assumed he would be in a position of peril, it was for the jury to say whether or not the sounds and gestures made by Foster under all the circumstances constituted actionable negligence.

The verdict was for defendant and plaintiff filed motion for a new trial, which the court granted, to set aside the verdict of the jury. The case was restored to the trial docket. Defendant excepted to the court's action in granting the motion for a new trial and this action on the part of the trial court is the basis for the only assignment of error appearing in this record.

Appellant's counsel on oral argument and in brief do not attempt to state the facts shown by defendant's evidence. They say: 'In some respects they differed radically from those which the plaintiff's evidence tended to show. However, appellant takes the position that it was entitled to the general affirmative charge under the strongest tendencies of the plaintiff's evidence and further that there was no merit in any ground of the motion for a new trial.' Such being the case in respect to the affirmative instruction, other errors are immaterial.

There are several well established propositions of law by this court applicable to this case.

A child as well as an adult may be a trespasser. Ford v. Planters' Chemical & Oil Co., 220 Ala. 669, 672, 126 So. 866; Southern R. Co. v. Forrister, 158 Ala. 477, 482, 48 So. 69; Luallen v. Woodstock Iron & Steel Corp., 236 Ala. 621, 184 So. 182.

The only duty owed by the owner or proprietor of a truck to a trespasser thereon in ejecting him from the truck is not to injure him wantonly or intentionally. Pollard v. McGreggors, 239 Ala. 467, 195 So. 736; Perry Supply Co. v. Brown, 221 Ala. 290, 128 So. 227; Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100 So. 240, 33 A.L.R. 417.

Where the owner or proprietor of a truck discovers a trespasser thereon in a position of imminent peril the failure to exercise due care in ejecting him may be the equivalent of wilfulness or wantonness. Jewel Tea Co. v. Sklivis, 231 Ala. 590, 165 So. 824; McGhee v. Birmingham News, 206 Ala. 487, 90 So. 492, and authorities cited.

'Peril' as regards the last clear chance doctrine means imminent, impending or certain peril. The term imports more than mere possibility of injury. The well considered general authorities are: Thomasson v. Henwood, 235 Mo.App. 1211, 146 S.W.2d 88; Southern Ry. Co. v. Whaley, 170 Tenn. 668, 98 S.W.2d 1061; Terre Haute & I. R. Co. v. Brunker, 128 Ind. 542, 26 N.E. 178, 179; Hall v. Town of Manson, 90 Iowa 585, 58 N.W. 881; Baldwin v. Wells, Mo.App., 27 S.W.2d 435.

A charge that does not probably injuriously affect the substantial rights of the parties cannot be prejudicial. Navco Hdw. Co. v. Bass, 214 Ala. 553, 557, 108 So. 452; Dudley v. Alabama Utilities Service Co., 225 Ala. 531, 144 So. 5.

Where the general affirmative charge should have been given the defendant, error in giving any other instruction to the jury is error without injury. Tobler v. Pioneer Mining & Mfg. Co., 166 Ala. 482, 515, 52 So. 86; Sloss-Sheffield Steel & Iron Co. v. Peinhardt, 240 Ala. 207, 199 So. 33; Walker v. Stephens, 221 Ala. 18, 127 So. 668; McCauley v. Tennessee Coal, Iron & R. Co., 93 Ala. 356, 9 So. 611; Birmingham Electric Co. v. Cleveland, 216 Ala. 455, 113 So. 403; Mobile, J. & K. C. R. Co. v. Smith, 153 Ala. 127, 45 So. 57, 127 Am.St.Rep. 22.

It is not necessary that we consider charge D if the defendant was entitled to the general affirmative charge which was requested and denied.

Unquestionably the deceased was a trespasser, as regards the truck driver Jack Foster, and the appellant. The fact that deceased was an infant did not prevent him from being a trespasser. In Ford v. Planters' Chemical & Oil Co., 220 Ala. 669, 672, 126 So. 866, 868, it was observed:

'Plaintiff insists that count A does not rest upon this doctrine, but is sufficient independently thereof. But, as pointed out in Cox v. Alabama Water Co. (216 Ala. 35, 112 So. 352, 355, 53 A.L.R. 1336), supra, defendant is not liable, unless it owes a legal duty which it neglected to perform. The conveyor was on defendant's property. That a child, as well as an adult, may be a trespasser is well settled. Southern R. Co. v. Forrister, 158 Ala. 477, 48 So. 69.

'The United States Supreme Court in the Britt Case (United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28), supra, speaking to this question, said: 'Infants have no greater right to go upon other people's land than adults, and the mere fact that they are infants imposes no duty upon landowners to expect them and to prepare for their safety.'

'And in Cox v. Alabama Water Co., supra, is the following language here pertinent: 'To create a legal duty, the person who goes upon the premises of another merely for his own benefit or pleasure must sustain a relation to the owner or his business equivalent to an invitation to come upon the premises.'

'Plaintiff was a trespasser. * * *'

It has long been the law in this state that the owner of property has the legal right to eject trespassers therefrom so long as he uses no more force than is reasonably necessary. In Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100 So. 240, 33 A.L.R. 417, the court said:

'The rule is stated in 2 R.C.L. p. 557, § 36, as follows "The right of a person to protect his property necessarily includes the right to eject persons trespassing thereon. To permit all persons at their will to enter and to remain in the house or the close of another, would practically destroy the dominion of the owner over his property, and would render it almost useless as well as worthless. Such has never been the law, and so long as there is such a thing as individual ownership of property, it is not probable that it ever will be. However, in an action for assault and battery a plea of justification, based on the right of the defendant to eject a trespasser, is good only where it appears that the force used in effecting the ejection was no more than that which was reasonably necessary...