Allison Coal & Transfer Co. v. Davis

• Decision Date: 31 May 1930
• Docket Number: 6 Div. 558.
• Citation: 129 So. 9,221 Ala. 334
• Parties: ALLISON COAL & TRANSFER CO. v. DAVIS.
• Court: Alabama Supreme Court

129 So. 9

221 Ala. 334

ALLISON COAL & TRANSFER CO. v. DAVIS.

6 Div. 558.

Supreme Court of Alabama

May 31, 1930

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages for personal injuries by Florence Davis against the Allison Coal & Transfer Company, and R. G. and L. L Allison, doing business as such. From a judgment for plaintiff, defendants appeal.

Affirmed.

R. P Evans and W. L. Hogue, both of Birmingham, for appellants.

Chester Austin, of Birmingham, for appellee.

THOMAS J.

The suit was for personal injury caused by an automobile collision on the streets of Birmingham.

The assignments of error challenge the overruling of demurrer to count one. The negligent conduct of defendant, by its agent or servant, that is available to plaintiff must be the proximate cause of the injury. When the whole complaint is considered, under the general terms of averment of negligence approved for such pleadings (Dwight Mfg. Co. v Holmes, 198 Ala. 590, 593, 73 So. 933), the negligence averred, and the injuries catalogued, and properly averred as to be proximately caused by, or the proximate result of, the wrongful action of defendant's agent, as specifically indicated. Ruffin Coal & Transfer Co. v. Rich, 214 Ala. 622, 108 So. 600; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610.

In count 2 it is charged that defendant's agents, servants, or employees, while acting within the line and scope of their employment, wantonly and willfully ran a truck into or against, etc. The distinction between intentional injury and wanton injury, and the different elements of proof required, were the subject of consideration in Adler v. Martin, 179 Ala. 97, 110, 59 So. 597; Feore v. Trammel, 212 Ala. 325, 102 So. 529; Louisville & Nashville R. R. Co. v. Calvert, 170 Ala. 565, 573, 54 So. 184; Central of Ga. Ry. Co. v. Corbitt, 218 Ala. 410, 118 So. 755; Ala. Power Co. v. Gooch (Ala. Sup.) 128 So. 793.

When all of the evidence is considered, a jury question was presented as to defendant's agent's conscious act and conduct in the premises from his knowledge of the existing conditions, and that injury would probably result from his act, and with indifference to probable consequences, intentionally and consciously drove into, or immediately in front of, the vehicle in which plaintiff was riding, and permitted his truck to collide or strike the said horse and vehicle, causing injury. A jury question was presented under the wanton count.

A conscious failure to use the required means to avoid peril, together with indifference as to consequence in the premises, may constitute willful misconduct, although no actual intent may exist to do the thing or cause the injury in question. Birmingham Railway & Electric Co. v. Pinckard, 124 Ala. 372, 26 So. 880; A. G. S. R. R. Co. v. Guest, Adm'r, 136 Ala. 348, 353, 34 So. 968. The expression in Adler v. Martin, 179 Ala. 97, 110, 59 So. 597, 601, is that "'A partial employment of available means, evincing some degree of care, is not sufficient' to disprove wanton negligence. B. R. & E. Co. v. Pinckard, 124 Ala. 375, 26 So. 881. But such efforts might, in particular cases, be regarded as conclusive of the absence of an intention to injure," and is not to the contrary.

An approved definition of wantonness is the conscious failure of one charged with a duty to exercise due care and diligence to prevent an injury after discovery of peril, or under circumstances where he is charged with a knowledge of such peril, and being conscious of likely, probable, or inevitable results and injury of and from such failure. Birmingham Railway & Electric Co. v. Bowers, 110 Ala. 331, 20 So. 345; Birmingham Railway, Light & Power Co. v. Ryan, 148 Ala. 69, 76, 41 So. 616; Birmingham Railway, Light & Power Co. v. Williams, 158 Ala. 390, 48 So. 93; Southern Railway Co. v. Wooley, 158 Ala. 447, 48 So. 369. It is the conscious failure to exercise due care by one charged with a duty. Brown v. St. Louis & S. F. R. R. Co., 171 Ala. 310, 55 So. 107; Birmingham Railway & Electric Co. v. Pinckard, supra; Adler v. Martin, supra. And in Central of Ga. Rwy. Co. v. Corbitt, 218 Ala. 410, 118 So. 755, it is declared:

"To constitute 'willful or intentional injury' there must be knowledge of danger accompanied with design or purpose to inflict injury, whether act be one of omission or commission; while in 'wantonness' design may be absent and act done with knowledge of probable consequence and with reckless disregard of consequence.

"As regards element of knowledge of peril on part of person charged with wrong, there is no distinction in principle between subsequent negligence and willful or intentional wrong."

The evidence is that the driver of defendant's truck, without cause, left his side of the street and turned to that on which plaintiff was riding, and collided with the animal or vehicle propelling plaintiff, causing her precipitation upon the street, and her injury. The street was about forty feet in width, and had defendant's servant, at a reasonable and moderate speed, proceeded on his side of the street and passed where he belonged by the rule of the road-between the wagon and the curb-there would have been no injury. That is to say, the truck driver deliberately and intentionally left his side of the road, striking the animal and conveyance.

First avenue in the city of Birmingham, as disclosed by testimony and photographs, is a wide thoroughfare with two street car tracks along the surface of same; and is paved; and the intersecting street in question, Fifty-Fourth street, is disclosed as an abutting, entering street. At or near the point of junction of this street and First avenue, the collision took place, defendant's truck traveling east on the avenue and the wagon north on Fifty-Fourth street into the avenue. As to willfulness, the witness Archie Edwards testified, as to the contention of plaintiff, that at the time the wagon started into First avenue, the defendant's driver and truck were 200 feet away, going 35 or 40 miles an hour; that the wagon then pulled across First avenue and the driver tried to get out of his way after he saw him, and the truck driver tried to beat him around, tried to run around ahead of the animal pulling the wagon, and in doing this caused the collision. He further testified as...