Alabama Power Co. v. Buck

• Decision Date: 29 April 1948
• Docket Number: 6 Div. 693.
• Citation: 35 So.2d 355,250 Ala. 618
• Parties: ALABAMA POWER CO. v. BUCK.
• Court: Alabama Supreme Court

35 So.2d 355

250 Ala. 618

ALABAMA POWER CO. v. BUCK.

6 Div. 693.

Supreme Court of Alabama

April 29, 1948

Rehearing Denied May 20, 1948.

McQueen & McQueen, of Tuscaloosa, and Martin, Turner &amp McWhorter and Alvin W. Vogtle, Jr., all of Birmingham, for appellant.

D G. Ewing, of Birmingham, and F. F. Windham, of Tuscaloosa for appellee.

STAKELY Justice.

This is a suit brought by Murray Buck (appellee) against Alabama Power Company (appellant) to recover damages to his automobile alleged to have been received in a collision with one of the busses of the Alabama Power Company in the City of Tuscaloosa, Alabama. There was verdict and judgment for the plaintiff and hence this appeal.

The appellant seeks a reversal because (1) the court refused to grant its request for the affirmative charge on count 1 which is based on simple negligence, (2) the court refused to grant its request for the affirmative charge on count 2 which is based on wanton misconduct and (3) because of the action of the court in connection with its oral charge and in giving charge B requested by the plaintiff.

In determining the propriety of a general affirmative charge when requested by the defendant, the evidence favorable to the plaintiff must be accepted as true. New Morgan County Building & Loan Ass'n v. Plemmons, 210 Ala. 286, 98 So. 12; Southern Ry. Co. v. Randall, 212 Ala. 41, 101 So. 661. And even if there was a conflict in the testimony of the plaintiff given on his direct examination and that given by him on cross-examination, this fact would not warrant the court in disregarding the testimony of the plaintiff. The jury had the right to determine which statement it would believe. Alabama Power Co. v. Byars, 236 Ala. 79, 181 So. 270; Spurlock v. J. T. Knight & Son, 244 Ala. 364, 13 So.2d 396.

The testimony favorable to appellee was substantially as follows. On December 6, 1946, appellee was driving west along Fifteenth Street in the City of Tuscaloosa at about 10:30 or 11 P.M. and collided with appellant's bus near the intersection of First Avenue and Fifteenth Street. The accident happened just before entering First Avenue. Appellee was driving at about 20 miles an hour, blew his horn and started around the bus and was about two-thirds by the bus when the bus struck his right rear fender. After the bus hit the fender and the driver of the bus had seen that he had hit him, the bus driver started straightening the bus up and it carried appellee all the way across the avenue with about two more licks. The first impact was about 10 or 15 feet from the east line of First Avenue. Appellee's car to the left of the center line of Fifteenth Street and he did not see the bus driver put out his hand. To the best knowledge of appellee the glass window was closed on the driver's side. It was a cold night. Appellee's car and the bus were running parallel and the bus had not started to make a turn when appellee started around the bus. Appellee did not see the stop lights on the rear end of the bus flash on. After the first impact appellee glanced in his rear view mirror and saw appellant's bus pulling away from his car and at that time he swayed his car to the left and from appellant's bus. The collision occurred as the bus was making a turn to the left. After the accident the car of appellee came to rest against a fire plug on the southwest corner of the intersection. The driver of appellant's bus stopped the bus about 30 yards west of the west line of First Avenue. Marks on the pavement from appellee's car began about 10 feet east of the intersection of Fifteenth Street and First Avenue and ran 30 or 40 feet in a westerly direction into and across First Avenue. There was testimony tending to show that the tire marks leading to the rear of appellee's car were drag marks and not skid marks. Skid marks result from putting on the brakes. Drag marks result when the car being struck is pushed or dragged. According to appellee he never put on his brakes.

Fifteenth Street runs east and west. It is 21 feet wide. First avenue which is 30 feet wide comes into Fifteenth Street at right angles from the south. First avenue does not extend beyond fifteen Street on the north side.

According to the bus driver when the bus was 150 feet east of and approaching the intersection of First Avenue and Fifteenth Street, appellee's car was 50 to 75 yards behind the bus. Appellee's car was traveling near the middle of the highway and was making pretty good speed and was going faster than the bus. According to the bus driver when he was slowing down for the intersection to make the turn he could see appellee back of him about 40 feet. At this time the bus was about 50 feet from the intersection.

Citing Holman v. Brady, 241 Ala. 487, 3 So.2d 30, appellant insists that it was entitled to the affirmative charge on account 1, the count of simple negligence, by reason of appellee's violation of § 13(c), Title 36, Code of 1940, which is as follows: '(c) The driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any steam or electric railway grade crossing nor at any intersection of highways unless permitted so to do by a traffic or police officer. Any person violating any of the provisions of this section shall be guilty of a misdemeanor.'

The fact that First Avenue does not run north past Fifteenth Street is immaterial as the term intersection as employed in the foregoing statute is defined as follows in § 1(r), Title 36, Code of 1940: '(r) 'Intersection'. The area embraced within the prolongation of the lateral curb lines or, if none, then the lateral boundary lines of two or more highways which join one another at an angle, whether or not one such highway cross the other.'

In Holman v. Brady, supra, examination of the original record shows the defendant requested the affirmative charge on the count charging simple negligence. The court denied this charge. We do not understand the opinion to hold that the charge should have been given as a matter of law, but rather that there was evidence tending to show contributory negligence, which we add made the question of contributory negligence a question for the jury. The court did hold that there was error in submitting to the jury the wanton count.

In the case at bar the testimony set out above shows that the bus driver turned to the left, without signalling his intention so to do, and 10 to 15 feet before the intersection was reached struck the plaintiff's car when it was on the left side of the street after it was two-thirds past the bus. In making the turn in this manner...