Birmingham Elec. Co. v. Graddick

• Decision Date: 03 October 1950
• Docket Number: 6 Div. 906
• Parties: BIRMINGHAM ELECTRIC CO. v. GRADDICK et al.
• Court: Alabama Court of Appeals

Page 318

49 So.2d 318

35 Ala.App. 484

BIRMINGHAM ELECTRIC CO. v. GRADDICK et al.

6 Div. 906.

Court of Appeals of Alabama.

Oct. 3, 1950.

Rehearing Denied Oct. 31, 1950.

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

Taylor, Higgins, Windham & Perdue, of Birmingham, for appellees.

HARWOOD, Judge.

Mrs. Inez Graddick sustained injuries while a passenger on appellant's bus, and instituted her suit for damages.

Mr. George D. Graddick, her husband, likewise filed suit based on loss of his wife's services.

The cases were consolidated for trial, the evidence in each case being identical.

Mrs. Graddick recovered a verdict and judgment for $1,000.00, and Mr. Graddick was awarded $100.00.

Motions for new trials being overruled as to each case separate appeals were perfected to this court, but on a consolidated record.

Each of the complaints contained wanton counts. General verdicts in favor of the respective plaintiffs were rendered by the jury.

The sole point presented by appellants' counsel on these appeals relates to the court's refusal to give at appellants request a charge affirmative in nature, as to the wanton counts.

The evidence presented by the plaintiffs below was to the effect that around nine o'clock on the morning of 19 November 1947, Mrs. Graddick was in the process of disembarking from a bus belonging to appellant, the bus being stopped at a usual loading and unloading place at First Avenue North and 19th Street in downtown Birmingham.

At this time the bus was struck from the rear by a street car also owned and operated by the appellant. The impact of this collision caused Mrs. Graddick to fall, sustaining the injuries complained of.

There had been a light shower on the morning in question, sufficient to make the street slick.

No skid marks, indicating the bus was moved by the impact, were found by a police officer who was nearby at the time of the collision.

For the appellant Mr. Willie L. Cashman, operator of the street car involved, testified that at the time of the collision the streets were wet, and traffic was fairly heavy. The street car was going west on 1st Avenue, and he had stopped at 20th Street. After leaving 20th Street nothing unusual happened, and the street car was moving approximately between 3 and 5 miles per hour; there was a bus ahead of him stopped and unloading passengers; he applied his brakes with the intention of stopping behind the bus, but when he did the wheels of the street car locked; that travelling three to five miles per hour, without anticipating that the conditions would cause the wheels to slide, there was sufficient distance to stop after application of the brakes; when the wheels began to slide he sanded the track and reversed the motor; the street car was not going fast when it hit the bus, which was only jarred by the impact.

On cross examination Mr. Cashman testified that when he first applied the brakes he was between 35 and 40 feet from the bus; the wheels locked and started sliding when he first applied the air brakes; in the usual application of service brakes there is no sand, but when emergency brakes are operated there is sand and brakes; there was a very slight down grade at the area of the collision, but sufficient for the car to roll by itself; he reversed the motor when 10 or 12 feet from the bus, which he had been following from one loading zone to another for about four blocks; there had been a slight mist of rain, and he knew the track was slick.

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