Berry v. Dannelly

• Decision Date: 25 November 1932
• Docket Number: 2 Div. 14.
• Citation: 145 So. 663,226 Ala. 151
• Parties: BERRY v. DANNELLY.
• Court: Alabama Supreme Court

145 So. 663

226 Ala. 151

BERRY v. DANNELLY.

2 Div. 14.

Supreme Court of Alabama

November 25, 1932

Rehearing Denied Jan. 27, 1933.

Appeal from Circuit Court, Wilcox County; John Miller, Judge.

Action by Donie C. Dannelly, as executrix of the will of Pat M Dannelly, deceased, against E. W. Berry. From a judgment for plaintiff, defendant appeals.

Affirmed.

Before entering upon the trial, defendant moved that the case be withdrawn from the then present call of the court, on the ground that the panel of jurors from which a jury to try the case was to be selected had been told that defendant carried insurance on his automobile in which deceased was riding when he received his injuries. In support of the motion, each member of the jury panel was sworn and examined. Certain of them testified that they had not therefore heard that defendant carried insurance nor that the suit was a friendly suit. Others testified that they had heard that defendant carried insurance, and some that they heard the suit was a friendly one. Upon cross-examination, each member of the panel testified that nothing he had heard with respect to insurance had prejudiced or biased his judgment, and that, if one of the jury trying the case, he would be governed by the evidence. Thereupon the trial court overruled the motion.

J. M Bonner, of Camden, and Coleman, Spain, Stewart & Davies, of Birmingham, for appellant.

S. F Hobbs, of Selma, for appellee.

BROWN J.

This action is by the personal representative of Pat M. Dannelly, deceased, against the appellant, under the Homicide Act, section 5696 of the Code 1923, for negligently causing his death.

The complaint, consisting of a single count, alleges that, while said Dannelly was riding with the defendant as a guest in defendant's automobile, which the defendant was then and there driving on a public highway, the defendant so negligently drove or operated said automobile that it collided with an automobile truck or other vehicle then and there on said highway, and as a proximate consequence said Dannelly sustained personal injuries from which he died, and that said injuries and death "were proximately caused by the negligence of defendant in the driving or operation of said automobile."

The plea was the general issue, "not guilty."

The evidence is without dispute that on the evening of November 19, 1931, about 5:30 o'clock the defendant, while driving his automobile on the Montgomery-Mobile highway, some ten or twelve miles south of Montgomery, with the said Dannelly as a guest in his automobile, drove or allowed his automobile to run into the rear of a truck loaded with cattle, and as a proximate consequence Dannelly was seriously injured, and that said injury caused his death.

The evidence offered by the plaintiff tended to show that the truck, in charge of one Davis, but being driven by a chauffeur, was proceeding south to the right of the middle line of the highway, in the same direction defendant was going, and was traveling between twelve and twenty miles per hour; that the truck was equipped with head and tail lights burning.

The evidence offered by the defendant tended to show that the truck was standing on the highway, to the right of the median line, with the right rear wheel on the margin, and there was no tail light on the truck.

The evidence is further without dispute that the highway at this point was subject to heavy traffic, and that automobiles and trucks traveled thereon with great frequency; that immediately before the catastrophe a truck approached from the south, going north, and passed the Davis truck and defendant's automobile; that the lights on the truck proceeding north were exceedingly bright and were not dimmed as it approached and passed the two vehicles proceeding south. The evidence further shows that the defendant was an expert driver of an automobile.

The defendant testified: "I stopped at Bozeman's filling station to get gas. *** About a mile south of that place we had an accident with the truck of J. L. Davis. Both of my head lights were burning and in proper condition. About in front of the house of the witness Brown the road makes a slight turn down a little slope, it turns slightly to the left and then back to the right, and up a little rise. From the bottom of the dip in the road to the top of the hill it was practically a straight line. I didn't take any measurements, but would presume that it is 300 yards or 250; that is from the bottom of the dip to the top of the rise where I first saw the lights. That is about seventy-five yards back towards Montgomery, and from that point on it was straight. I was driving about thirty miles an hour; it could have been slightly more or less. *** I saw another car approaching us. I first saw the glare of the light behind the hill. When it got close it appeared to be a glaring light. I was momentarily blinded, just before the car passed me and got up close. The accident happened pretty soon after I passed that car. I was on my right hand side of the road and was looking at the road all the time. When the car passed us we crashed into the truck. I saw no obstruction, a truck or anything else, in the road just prior to the accident. I saw no tail light in front of me." (Italics supplied.)

The defendant here asked the witness the following question: "Q. If there had been one burning could you have seen it?" Objection was sustained to this question, and defendant reserved an exception.

The defendant further testified: " There was no tail light burning on the truck. I was looking in that direction. *** As I regained consciousness I found that Judge Dannelly was in distress." (Italics supplied.)

Defendant's counsel then asked him: "Q. What was he saying?" The court sustained plaintiff's objection to this question, and defendant excepted.

The defendant further testified: " When I became blinded I removed my foot from the accelerator and pulled to the right, toward the curb as far as I dared." (Italics supplied.)

Defendant's counsel here asked the witness: "Was there any time to do anything other than that?" The court sustained an objection to this question, and defendant reserved an exception.

The defendant further testified: "I did not say to him [Davis] that I did not blame him."

And on cross-examination: "I did tell him that I was blinded by the lights on the approaching car, and told him that I was watching the curb. I had my lights on full. I don't remember whether I ever dimmed them or not. When I took my foot off the accelerator I did not kick the clutch and did not put on the brakes. *** The head lights throw a light far out in front. *** The crash came very shortly after I was blinded. In less time than it has taken you to tell it. A. Yes," etc. (Italics supplied.)

And on his redirect examination: "From my present knowledge of the road, which I have looked over since, I could have been blinded in that dip in the road. I didn't know there was a dip in the road in the darkness. The place of the collision was about seventy-five yards south of the dip in the road, in my judgment. I didn't measure it. I did not see the truck before the collision. I didn't see it until I stopped." (Italics supplied.)

While, as a general rule, a traveler on a public highway who has no knowledge of an obstruction on the highway, or knowledge of facts and circumstances sufficient to put him on notice, has the right to assume that it is clear of permanent or semipermanent obstructions (Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; City of Huntsville v. Phillips, 191 Ala. 524, 67 So. 664), yet we know of no rule of law or logic that justifies him in assuming that such highway is not occupied by other vehicles or travelers, and he is under legal duty to use the care of an ordinarily prudent man to avoid collision with others exercising their lawful rights in the use of the highway ( St. Louis-San Francisco R. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A. L. R. 1110).

If the defendant was constantly watching the road ahead, as he testified, it is difficult to understand how he failed to discover the presence of Davis' truck in time to avert the collision. In the circumstances, he not only had the aid of the headlights on his car, but the aid of the bright lights on the truck that approached and passed from the south, which, it would seem, were bound to disclose the presence of the Davis truck as it approached and passed.

The more reasonable inference is that defendant, in his effort to steer clear of the truck approaching from the south by steering his car as near to the curb on his right as he "dared," to use his language, relaxed his vigilance in keeping a lookout ahead within the range of the shaft of light cast by the lamps of his automobile, and thus

failed to discover the presence of the truck of Davis immediately ahead.

The evidence is without dispute that defendant made no effort to stop, but merely took his foot off the accelerator and allowed his automobile, which was moving forward at a rate of thirty miles per hour, to coast until it ran into the rear of the truck.

The evidence presented a case for jury decision, and justified the refusal of the general affirmative charge requested by the defendant. Langley Bus Co. v. Messer, 222 Ala. 533, 133 So. 287.

Charge 2, asserting that plaintiff would not be entitled to recover if the jury was reasonably satisfied that Dannelly received his injury as the result of a "mere accident," was refused without error. Smith...