Alabama Produce Co. v. Smith, 8 Div. 271.

• Decision Date: 24 March 1932
• Docket Number: 8 Div. 271.
• Citation: 224 Ala. 688,141 So. 674
• Parties: ALABAMA PRODUCE CO. ET AL. v. SMITH.
• Court: Alabama Supreme Court

141 So. 674

224 Ala. 688

ALABAMA PRODUCE CO. ET AL. v. SMITH.

8 Div. 271.

Supreme Court of Alabama

March 24, 1932

Rehearing Denied May 26, 1932.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Action for damages for personal injuries by G. F. Smith against the Alabama Produce Company and Virgil McKee. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

A. J Harris and O. Kyle, both of Decatur, for appellants.

Eyster & Eyster and Wright & McAfee, all of Decatur, for appellee.

THOMAS J.

The action of the court in overruling demurrer to the complaint and in giving written charges and overruling motion for a new trial, is assigned as error.

Plaintiff contends that the facts are, that while he was walking along the eastern edge of the paved highway, known as the Bee Line highway in Morgan county, and going south on the left-hand side thereof, about two feet from the edge of the pavement, an automobile truck approached him from the rear, said truck going south and in the same direction appellee was walking, and being driven by one of the defendants or an agent of the Alabama Produce Company, the appellant; that the truck was negligently operated, causing the defendants or defendants' agent to run the automobile against plaintiff, resulting in the injury complained of; that the truck was being driven at a rapid rate of speed while rounding a curve on said highway, and, while approaching and passing, or attempting to pass, another automobile going south on said highway at or about the place the injury complained of occurred, the driver of the truck gave no signal or warning; that, after the driver of the truck discovered the peril or danger in which plaintiff was placed, he did not stop or check the speed of the truck, nor did he give any signal or warning, and negligently ran such truck against the plaintiff causing the injury complained of. Plaintiff further contends that he did not change his course from the east side of the highway and towards the center of the highway, nor did he attempt to cross said highway in front of said truck of the defendants; that the defendants' agent, the driver of the defendants' truck, did not check the speed of his truck after he saw and appreciated the danger and peril in which plaintiff was placed. We will later advert to the tendencies of the evidence as illustrated by refused charges.

The trial was had on counts 1 and 2 for simple and subsequent negligence. Subsequent negligence is provable under a sufficient count for simple negligence in general terms ( Central of Georgia Rwy. v. Lamb, pro ami, 124 Ala. 172, 26 So. 969; Central of Georgia Rwy. Company v. Foshee, 125 Ala. 199, 217, 27 So. 1006), or a count specifically declaring therefor, stating the facts of subsequent negligence shown by the acts so characterized. Louisville & Nashville R. R. Co. v. Young, 153 Ala. 232, 238, 45 So. 238, 16 L. R. A. (N. S.) 301; Louisville & Nashville R. R. Co. v. Calvert, 170 Ala. 565, 54 So. 184. We think count 2 sufficiently averred the facts of subsequent negligence. See, on the requirements of good pleading, Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; Knight v. Tombigbee Valley R. Co., 190 Ala. 140, 67 So. 238; Tennessee Coal, Iron & R. R. Co. v. Smith, 171 Ala. 251, 55 So. 170. The rulings on demurrer were without reversible error.

Approaching a consideration of the refusal of defendants' charges requested in writing, we may observe that the rule is that directed verdicts are proper only where there is no evidence that tends to establish the issue; that general charges should not be given where evidence justifies adverse inference, as when the evidence offered by the party against whom the general charge is requested is accepted as true. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. And a party to the suit has the right to request instructions to the jury based on the hypothesis of evidence in his favor; thus the respective jury questions may be succinctly stated. Such charges are not objectionable when based on a partial view of the evidence, since the opposite party may request charges founded on a contrary material hypothesis which the evidence tends to establish. Griel & Brother v. Marks, Fitzpatrick & Co., 51 Ala. 566; Walker v. State, 220 Ala. 544, 548, 126 So. 848; Hammil v. State, 90 Ala. 577, 581, 8 So. 380; Munkers v. State, 87 Ala. 94, 98, 6 So. 357; Alexander v. Alexander, 71 Ala. 295; Bradford v. Marbury, 12 Ala. 520, 527, 46 Am. Dec. 264; Clealand v. Walker, 11 Ala. 1059, 46 Am. Dec. 238. It is further established that a charge is not considered abstract when there is a tendency of evidence, "however weak and inconclusive," to support the hypothesis on which it is based (Knowles v. Ogletree, 96 Ala. 555, 559, 12 So. 397; Schaungut's Adm'r v. Udell & Crunden, 93 Ala. 302, 304, 9 So. 550; Steed v. Knowles, 97 Ala. 573, 12 So. 75), and from which the jury can and are authorized to draw an inference supporting that hypothesis; an inference "they believe to be reasonable." McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135, and authorities; Schaungut's Adm'r v. Udell & Crunden, supra.

The foregoing will suffice to test the refusal of defendants' written charge Y under the evidence. It hypothesized that the accident complained of was caused (1) "by plaintiff walking out suddenly from a position of safety on the left hand side of the highway going south, and (2) that without that act on the part of the plaintiff the accident would not have occurred," etc. Do the facts show that plaintiff's act in that behalf was negligent; and is the law on the issue properly stated? The act of the plaintiff is not characterized as negligent. Defendants' answers (c) and (d) tended to show that at the east side, or at the "edge of the paved highway there was ample room for the truck to pass the man (plaintiff) and the other car"; that, just as the truck of defendant started to pass the car ahead, the man that was struck and his companion were likewise ahead and proceeding south; that the car ahead and sought to be passed was on the left-hand side of the highway; that the highway had approximately a northerly and southerly direction, and was divided by a yellow line; that plaintiff was injured by the fact that, as defendant's truck was passing, he suddenly turned to the middle of the road in front of the truck; that the driver immediately put on his brakes, turned to his (driver's) right until he grazed the side of the car ahead, and that it was the left fender of the truck that injured plaintiff; that when the driver of the truck saw plaintiff and his companion, they were on the right side of the highway and to the left of the side on which the truck proceeded.

It may be said further, that there was a shoulder or unpaved margin of highway on the right and left sides; that the car ahead of the truck pulled off the pavement onto the left side of the highway, and plaintiff, injured, fell to the right and partly upon the unpaved highway; that it was up grade to the north of the point of collision; that at or about the time there was also a car approaching from the south on the east side of the highway; there was a tendency of evidence that plaintiff was struck about two and one-half feet from the east margin of the pavement.

The evidence of witness Penn located the pedestrians on the east side of the highway as the truck tried to pass the car ahead, and, as plaintiff was injured, he seemed to be nearly in the center of the road and on the left-hand side of the highway, and the car ahead (the Ford) was on the western edge of the highway.

Witness Hampton said, among other things, that the pavement was eighteen feet wide; that, as the truck pulled around the car, it made the truck pass "on the east side" of the two men proceeding thereon; that the Ford was on the extreme left side of the highway, and that the defendant's truck "seemed to whip around there" to the other side of the highway.

The witness Scheuing testified: "I drove up to the place of the accident and had a conversation with Smith who said 'We were about off of the pavement and the truck hit us, the truck was off of the pavement when it hit us.' And when he said that, these two gentlemen ran up and I says: 'There is no use of having any argument, there is the mark and there is no mark where...