Birmingham Elec. Co. v. McQueen

• Decision Date: 19 January 1950
• Docket Number: 6 Div. 830
• Citation: 44 So.2d 598,253 Ala. 395
• Parties: BIRMINGHAM ELECTRIC CO. v. McQUEEN.
• Court: Alabama Supreme Court

Page 598

44 So.2d 598

253 Ala. 395

BIRMINGHAM ELECTRIC CO. v. McQUEEN.

6 Div. 830.

Supreme Court of Alabama.

Jan. 19, 1950.

Rehearing Denied March 9, 1950.

Lange, Simpson, Robinson & Somerville, of Birmingham, for appellant.

Taylor, Higgins, Koenig & Windham, of Birmingham, for appellee.

SIMPSON, Justice.

The plaintiff, Eugene McQueen, eighteen years of age at the time of the accident, suing by next friend, recovered, a judgment for damages against the appellant for injuries received by him as a passenger in an automobile in collision with one of appellant's streetcars about 12:30 a. m. March 21, 1946.

The collision occurred near the intersection of First Avenue, North, and 82nd Street in the city of Birmingham, Alabama. The streetcar was being operated at the time upon what is known as the West End line and its route required the streetcar to proceed straight in a westerly direction along First Avenue across said intersection, whereas, instead of taking this route, which witnesses testified was the customary and proper route to be taken by the streetcar, by reason of the switch being open it turned onto 82nd Street into the path of the automobile, which was proceeding eastwardly on First Avenue, and struck its left rear portion, where the plaintiff was seated, resulting in wrecking the motor vehicle and seriously injuring the plaintiff.

There were two counts in the complaint, one for negligence and one charging wantonness on the part of the agent or servant of the defendant in the operation of the streetcar. The first insistence of error is rested on the refusal of the trial court to give the general affirmative charge for the defendant on the wanton count. We will not detail the entire evidence in the case, but make only such references thereto as will demonstrate our conclusion that the charge was properly refused.

At the outset we will restate for emphasis the well-recognized rule that the test in reviewing the propriety of the affirmative charge is not what our view may be of the weight of the evidence or even what inferences we may think more probable, but if from the proven facts and circumstances a reasonable inference may be drawn to substantiate the claimed culpability of the defendant, the charge must be refused. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224; Duke v. Gaines, 224 Ala. 519, 140 So. 600.

Viewed in the light of this guiding principle and considering the evidence in its most favorable aspect for the plaintiff, the impartial mind cannot escape the conclusion that the jury might reasonably infer wanton conduct on the part of the motorman at the time of the accident.

Of course, it must be shown that from his knowledge of existing conditions that injury would likely result and, with reckless indifference to the consequences, he consciously and intentionally did the wrongful act or omitted to do some duty, proximately producing the result. Bradley v. Johnson, 212 Ala. 330, 112 So. 710.

But wantonness may arise from knowledge that persons, though not seen, are likely to be in position of danger and bringing on disaster with conscious disregard of known conditions and in violation of a duty to act. It may arise after discovery of actual peril by conscious failure to use preventive measures at hand. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13.

We think the jury had a right to infer from the proven facts and circumstances that the motorman was guilty of wantonness within the rule of our cases in allowing the streetcar to be turned into the 82nd Street intersection and continue in the direction of the plaintiff's car, which, according to some of the testimony, he first observed about 100 feet away, when by the turning of a lever he could have brought the streetcar to an almost immediate stop. He testified he noticed the switch was open as he approached it and that he expected it to be open. With knowledge, however, of this apparent danger, and the conditions there existing, he did nothing to stop the streetcar, but instead he deserted his post of duty and ran toward the rear. According to the evidence of plaintiff, the automobile was proceeding eastwardly along its proper side of the Avenue at a rate of speed of between twenty and thirty miles an hour; the street car, according to some witnesses, was proceeding at about the same rate of speed, and had both vehicles maintained their proper course they could have passed in safety and the collision would not have occurred. But instead, the motorman, though anticipating the switch would be open and then seeing it so, failed to act to prevent the collision. Under one aspect of the motorman's testimony, the automobile was first observed by him about 100 feet west of the intersection, and the streetcar was traveling at a speed of approximately five miles an hour with the current off, and in an emergency, brakes could be applied with a single movement of the brake lever, which would have stopped the car in a few feet. This, as stated, he failed to do, but instead deserted the controls and ran toward the rear of the streetcar. We must conclude that under either phase of the evidence a fair inference of wantonness occurs and there was no justification for the giving of the affirmative charge for the defendant on the wanton count.

The trial court refused the following charge, which is the basis of one assignment of error: '20. The Court charges you that if you are reasonably satisfied from the evidence in this case that the driver of the automobile was in an intoxicated condition, and that by reason thereof it was dangerous for him to operate an automobile, and you are further reasonably satisfied from the evidence that the plaintiff, with knowledge of the driver's condition, negligently entered and rode in said automobile, and that such negligence on his part proximately contributed to cause his alleged injuries, then I charge you that the plaintiff would not be entitled to recover under Count One of the complaint.'

There may be other grounds on which refusal of the charge may be justified, but one manifest is that it was abstract. Though there was evidence that the driver of the car had some time before the accident partaken of a half-bottle of beer, there was an entire absence of evidence that he was either in an intoxicated condition or that it was dangerous for him to drive the automobile or that appellee had any knowledge of these asserted conditions.

City police officer Massey, a witness for the defendant, testified on direct examination and was permitted to refer to his 'wreck investigation card,' which was his official report to the City Department, as an aid to refreshing his recollection regarding the scene of the accident. In the course of his examination in chief, after referring to this investigation card, he testified as to the observance of certain skid marks of the automobile at the scene of the accident and also that the driver of the car, Davidson, told him at the hospital, following the collision, that he, Davidson, 'wasn't doing much over 40 miles an hour.' On cross-examination, plaintiff's counsel was permitted to cross-examine the witness as to what the card showed with reference to the skid marks and that the card showed contrary to what his testimony was on the stand, and that in the space on the card for noting the speed of the automobile he had put a question mark and 'didn't put any speed whatsoever.' After this cross-examination, defendant sought to introduce the entire investigation report card and the court's action in refusing it is made the basis of an assignment of error. We think the questions on cross-examination directed to the notations on the card as regards the skid marks and the speed of the automobile were by way of impeachment of the witness's direct testimony and that it was properly to be referred to for that purpose. The effect of the decisions on the question is that such part thereof may be used for the single special purpose of impeachment without making the whole of the document evidence, with the permission of the adverse party to use such other parts of the document as may serve to explain the contradictions. Grasselli Chem. Co. v. Davis, 166 Ala. 471, 52 So. 35; Birmingham Ry., Light & Power Co. v. Bush, 175 Ala. 49, 56 So. 731; Portsmouth Cotton Oil Refining Corp. v. Madrid Cotton Oil Co., 200 Ala. 634, 77 So. 8. Defendant, however, did not seek to introduce such other parts of the document for the purpose of explaining this impeaching evidence, but proffered the entire document, which was not within the rule of admissibility.

One assignment of error challenges the admissibility of a profile picture of the plaintiff, taken immediately after the bandages were removed, showing the various lacerations and wounds on his face and head. The photograph was proven to have correctly reflected the condition of the wounds at that time. The trial took place more than two years later, and we think the photograph gave a well-defined and vivid picturization of the extent and character of the facial injuries suffered by the plaintiff, and its inspection here fully convinces us that it served a proper purpose. Birmingham Baptist...