Becknell v. Alabama Power Co.

• Decision Date: 06 October 1932
• Docket Number: 7 Div. 140.
• Citation: 143 So. 897,225 Ala. 689
• Parties: BECKNELL v. ALABAMA POWER CO.
• Court: Alabama Supreme Court

143 So. 897

225 Ala. 689

BECKNELL v. ALABAMA POWER CO.

7 Div. 140.

Supreme Court of Alabama

October 6, 1932

Rehearing Denied Nov. 3, 1932.

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Action under the homicide statute (Code 1923, § 5696) by Ruth Becknell, as administratrix of the estate of Fletcher R Becknell, Jr., deceased, against the Alabama Power Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Rutherford Lapsley and Young & Longshore, all of Anniston, for appellant.

Knox Acker, Sterne & Liles, of Anniston, for appellee.

THOMAS J.

The suit was for wrongful death and the affirmative charge given at the request of the defendant. The verdict was for the defendant. It is necessary, therefore, that the evidence and reasonable tendencies thereof be considered.

This cause was tried upon counts 2 and 3 of the complaint charging, respectively, wantonness and subsequent negligence. It is alleged that one of defendant's street cars was being operated upon Main street, a public street or highway in the town of Oxford, going in a southerly direction; that plaintiff's intestate was at such time and place driving an automobile in a northerly direction, approaching said street car upon defendant's street car track. Count 2 alleges that defendant's said street car collided with the automobile of plaintiff's intestate, as a proximate consequence of which he was killed; and that intestate's death was proximately caused by the wanton, willful, or intentional conduct of defendant's servant or agent, etc. Count 3 alleges that intestate was upon defendant's street car track, and defendant's street car was rapidly approaching intestate, and he was then in a place of danger; that the danger of intestate was seen or known at that time to defendant's agent or servant in charge or control of defendant's street car, but, notwithstanding such knowledge on his part, he negligently permitted the street car to run upon or against the automobile in which plaintiff's intestate was driving, thereby killing him, etc.

Plaintiff introduced in evidence interrogatories propounded to defendant by her, under the statute (Code 1923, § 7764), and also the answers thereto sworn to by J. P. Atkinson, who was the motorman operating the street car which was in the collision. From these answers it appears that the collision occurred about 10 o'clock p. m., June 28, 1930, at a point approximately 200 feet north of the intersection of McKibbon and Main streets, in the town of Oxford; that, when the street car was about 300 feet from the point of collision, it was going approximately 18 or 20 miles an hour; that from that point on it entered a slight rise, and there was a gradual decrease in the speed as the car made the rise; that the car was probably going from 8 to 10 miles an hour when 25 feet from the point of collision; that it slowed up a great deal in the last 25 feet before the accident, and was either at a dead standstill or going not more than a mile or two an hour when the collision occurred. Facts and circumstances leading up to and surrounding the accident are thus detailed in the answers:

"The motorman rang his bell and sounded the gong a great many times before reaching the point of collision. *** When the automobile driven by Mr. Becknell was some 40 feet away from the street car it suddenly darted out of line from a place where it then was entirely in the clear, darting at great speed towards the street car. Immediately upon this taking place the motorman rang the gong, tapping the bell as fast as he could and as loud as he could, and continuing to do so until the automobile was five or ten feet away from the street car, at which point the motorman jumped back in the car to escape the danger of flying glass resulting from the automobile running into the street car at the high rate of speed the automobile was making.

"This accident occurred at night and it was impossible for the motorman to know when he first saw this particular automobile, as there was a long line of automobiles and about all that was visible was the row of headlights. It is probable that the lights of this particular automobile, together with the lights of other automobiles in front of and behind it, were seen by the motorman for several blocks, but he had no way of identifying any particular set of lights as the lights of the Becknell car until that car came close enough to be identified by its actions. When the Becknell car was 300 feet from the street car, and when it was 200 feet, and when it was 100 feet from the street car, it represented to the motorman simply headlights in a line of headlights, and, therefore, there is no way to answer the question as to the position, etc., of the automobile when these distances from the street car. The question as to the automobile when 50 feet from the street car can be answered in this way: When the Becknell automobile was about 40 feet from the street car it suddenly darted around a car in front of it and came towards the street car at a high rate of speed. Its position just before this was that it was the automobile next behind the automobile which was the nearest the street car. The (this) automobile and the Becknell automobile were in a line entirely clear of the tracks just before the Becknell automobile swerved out of line, dashed around the first automobile and darted towards the street car, such swerving commencing at a point when the Becknell automobile was about 40 feet from the street car.

"*** The moment the motorman saw the automobile swerve out and dart towards him in this way he put in operation a full emergency stop. This is accomplished on a car of the type he was running by a complete release of the controller handle. He completely released the controller handle and the effect of such release was to automatically and practically instantaneously cut off the

...