Motor Terminal & Transportation Co. v. Millican

• Decision Date: 18 February 1943
• Docket Number: 6 Div. 27.
• Citation: 244 Ala. 39,12 So.2d 96
• Court: Alabama Supreme Court
• Parties: MOTOR TERMINAL & TRANSPORTATION CO., Inc. v. MILLICAN.

12 So.2d 96

244 Ala. 39

MOTOR TERMINAL & TRANSPORTATION CO., Inc. v. MILLICAN.

6 Div. 27.

Supreme Court of Alabama

February 18, 1943

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

The following charges were refused to appellant:

"A-7. I charge you, gentlemen of the jury, that the Motor Terminal & Transportation Company had a right to assume, upon the occasion of the Georgia Motor Express turning over to it the truck of the Georgia Motor Express to be used on the highways of the City of Birmingham, that said truck was in a reasonably safe condition, and was in such a condition that it might be used in a reasonable and proper manner on the streets of the City of Birmingham in safety."

"A-8. I charge you, gentlemen of the jury, that the mere fact if it be a fact that some month or six weeks prior to the accident involved in this case the wheel on the truck involved in said accident came off does not show or tend to show that the wheel which came off on the occasion of this accident was in a defective condition on the 20th day of August, 1940, prior to its being driven on the streets of the City of Birmingham by the defendant Motor Terminal & Transportation Company."

"A-9. I charge you, gentlemen of the jury, that knowledge by employee or employees of the defendant Motor Terminal &amp Transportation Company that a wheel on the truck involved in this case became detached from said truck a month or six weeks prior to the accident involved in this case, is not evidence that the defendant Motor Terminal &amp Transportation Company, or its agents, servants or employees knew that said truck, on the 30th day of August, 1941, was in a defective condition."

"A-12. I charge you, gentlemen of the jury, that the law did not impose a duty on the defendant Motor Terminal &amp Transportation Company to inspect the tires, rims and wheels on the truck on the occasion of its being delivered to it by the Georgia Motor Express, but it had a right to assume that said truck delivered to it by the said Georgia Motor Express for operation on the streets of the City of Birmingham was in a reasonably safe condition."

"A-13. I charge you, gentlemen of the jury, that the mere fact, if it be a fact, that the truck involved in this case was an old truck does not raise a presumption that the truck was in a defective and unsafe condition."

"A-14. I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence that the defendant, Georgia Motor Express, had a competent mechanic to inspect the truck involved in this case each morning, and that the truck was inspected on the morning of August 30, 1940, and this fact was known to the defendant, Motor Terminal & Transportation Company, or its servants, agents or employees, I then charge you that the defendant, Motor Terminal & Transportation Company, had the right to assume, when said truck was delivered to it on the afternoon of August 30th, 1940, that it was in a reasonably safe condition and was not in a defective and unsafe condition."

"A-16. I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence in this case that the plaintiff received his injury as a result of a mere accident and that the defendant Motor Terminal & Transportation Company and W.L. Whitson were not guilty of negligence, I then charge you that you cannot find a verdict in favor of the plaintiff and against the Motor Terminal & Transportation Company."

London & Yancey, Geo. W. Yancey, and Fred G. Koenig, Sr., all of Birmingham, for appellant.

Harsh & Hare and F.D. McArthur, all of Birmingham, for appellee.

LAWSON Justice.

The appellee, plaintiff below, brought suit against the Georgia Motor Express, Inc., and Motor Terminal & Transportation Company, a corporation, to recover damages for personal injuries received by him when he was hit and knocked down by a tire and rim which had become detached from the wheel of a truck owned by Georgia Motor Express, but which was being operated at the time by Motor Terminal & Transportation Company.

The trial resulted in verdict and judgment for the plaintiff against both defendants in the amount of $4,000. Georgia Motor Express did not appeal. The case is here on appeal by Motor Terminal & Transportation Company.

The complaint as originally filed consisted of two counts, and was amended by the addition of several other counts. However, the only one to reach the jury was count A, which in substance charged that on August 30, 1940, the defendant Georgia Motor Express owned a certain motor truck, which it supplied to the defendant Motor Terminal & Transportation Company, for the purpose of hauling freight over the public streets of the City of Birmingham; that both defendants had knowledge of the fact that the said truck was in a defective condition and not reasonably safe for operation on the public streets; that on said date the defendants negligently caused or negligently allowed said motor truck to be operated along a public street in the City of Birmingham, in a condition not reasonably safe to be so operated, and as a proximate consequence of said negligence of the defendants, a tire and rim became detached from said truck while it was in motion and rolled to the place where the plaintiff was standing or walking upon a public sidewalk of said City, where he had a right to be, and struck the plaintiff a violent blow in the back, thereby injuring him.

The defendant pleaded in short by consent in the usual form.

Appellant insists it was entitled to the affirmative charge for the reason that the evidence shows that the defect which caused the tire and rim to become detached from the wheel was not an obvious defect, but a latent or hidden defect, of which the appellant did not have knowledge.

The defendants, both engaged in the business of hauling freight, operated out of the same terminal, located at 1301-1st Avenue, North, in the City of Birmingham. On the afternoon of August 30, 1940, the appellant obtained the permission of the Georgia Motor Express to use one of the latter's trucks for the purpose of picking up and delivering freight in the City of Birmingham. The truck driven on that occasion by one Whitson, an employee of the appellant, was travelling east on 8th Avenue, North, between 20th and 21st Streets, when a rim and tire became detached from the truck and rolled east on 8th Avenue, a distance variously estimated as being from 150 to 400 feet, to the northeast corner of the intersection of 8th Avenue and 21st Street, where it struck the plaintiff in the back, rendering him unconscious and otherwise injuring him. The plaintiff was standing on the sidewalk waiting on a street car at the time that he was hit. The truck was equipped with dual rear wheels, two on the right and two on the left. It was the right rear outside tire and rim which became detached and struck the plaintiff. The truck was moving slowly at the time and the driver testified that shortly before he saw the tire and rim pass the truck he heard a loud noise as if one of the tires had blown out, and after he stopped the truck he found that the right rear inside tire was deflated and that the threads which held the tire and rim on the wheel were stripped and were old, rusty and worn.

The exact number of years that the truck had been in operation is not shown by the evidence, but it was generally referred to as an old truck. One witness identified it as a 1932 model, while another stated that the particular model was manufactured from 1933 to 1936.

Whitson who was driving the truck at the time of the accident as an employee of appellant, testified for the plaintiff and stated that when he was ordered to drive the truck he told Mr. Vines, the dispatcher for the appellant, that the truck was not in condition to drive, but he was told to take his choice of the truck which was involved in the accident or another truck owned by the Georgia Motor Express which was also in poor condition, and that the choice he made was due to the fact that the truck he was driving had a good seat in it. He further testified that he had been told by one of the drivers for the Georgia Motor Express prior to the date of the accident that the wheels on the truck had come off while it was in operation. That he had seen the mechanic for the Georgia Motor Express fixing a wheel that came off the truck about a week before the accident and that...