Birmingham Elec. Co. v. Toner

• Decision Date: 07 October 1948
• Docket Number: 6 Div. 636.
• Citation: 251 Ala. 414,37 So.2d 584
• Parties: BIRMINGHAM ELECTRIC CO. v. TONER.
• Court: Alabama Supreme Court

37 So.2d 584

251 Ala. 414

BIRMINGHAM ELECTRIC CO. v. TONER.

6 Div. 636.

Supreme Court of Alabama

October 7, 1948

Rehearing Denied Dec. 2, 1948.

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

H. H. Grooms and Spain, Gillon, Grooms & Young all of Birmingham, for appellee.

STAKELY Justice.

This is a suit brought by Mrs. Edna D. Toner, as administratrix of the estate of Frank Toner, deceased, against the Birmingham Electric Company to recover for the death of her intestate alleged to have been caused by the negligence of the servant agent or employee of the defendant while engaged in the line and scope of his employment. Trial of the case resulted in a verdict and judgment for the defendant. Upon motion of the plaintiff the court set aside the verdict and judgment and granted the plaintiff a new trial. This appeal is from the ruling on that motion.

The motion was based on a number of grounds, including the ground of newly discovered evidence and the ground that the verdict was contrary to the great weight of the evidence. In granting the motion the court did not state the ground on which the motion was granted. The only assignment of error is the ruling of the court on the motion, and in their argument counsel for appellant confine their discussion to the grounds to which we have referred.

Frank Toner died as a result of injuries sustained in a collision between a United States Army truck in which he was riding as a soldier and a streetcar operated by the defendant. The deceased was in an army convoy which had come to Birmingham from Fort McClellan for the Armistice Day parade on November 11, 1941. The convoy contained a considerable number of vehicles and was in several sections. After leaving Legion Field on its way back to camp the convoy proceeded eastward along Eighth Avenue, North, to Fourteenth Street and turned south on Fourteenth Street toward Fourth Avenue. The collision between the truck in which deceased was riding and the streetcar occurred in the intersection of Fourteenth Street and Fourth Avenue, at a time when the truck was moving south on Fourteenth Street and the streetcar was moving west on Fourth Avenue. It was after dark when the collision took place. The street lights were on. There were stop signs protecting the traffic going both east and west on Fourth Avenue but no stop light. There were no military police or police officers of the City of Birmingham anywhere near the intersection at the time of the accident. The driver of the truck in which intestate was riding entered the intersection without stopping up to the point of collision. The deceased was riding in the back of the truck with three other soldiers. A tarpaulin separated them from the driver and the soldier riding beside the driver. The tarpaulin obstructed the view to the rear of the driver and the soldier beside him. It also obstructed the view to the front of the soldiers in the rear of the truck.

Joseph F. Scaduto, the driver of the truck at the time of the accident, Anthony Sperilli and James Carberry, soldiers who were riding in the truck, testified for the plaintiff. Their testimony tended to show that there were about 30 to 40 trucks in their part of the convoy, the truck in which they were riding being in about the center thereof, that the convoy was moving at about 25 to 30 miles per hour and did not stop at any intersection in the dozen blocks or so that it had travelled from Legion Field, that the trucks were in line, all had their lights on and were spaced about 40 to 50 feet apart, that there was no break in the line of the convoy at any time before the accident, that this particular truck had not stopped or gotten out of its place in the line, and that its speed was steady, that they saw the streetcar just before it entered the intersection going about 35 to 40 miles per hour, that they did not notice any traffic on the streets at the intersection. Joseph F. Scaduto denied that he had told a police officer before leaving the scene of the accident that there was a break in the line of the convoy ahead of him.

Carl Neill, a city police officer, testified that Joseph F. Scaduto did state to him at the scene of the accident that there was a gap in the convoy ahead of the truck he was driving, that Scaduto pointed to an alley about half a block away as indicating the distance of the truck ahead of him, that he did not put his conversation with Scaduto on his report of the accident nor did he put on the report any conversation with witnesses.

Virginia Neuman and Doris Hollingsworth testified that they were in a car riding along beside the convoy in the same direction, that they were talking to some of the soldiers in the convoy, that there was no police officer or military police present at the time of the accident, that they saw no army trucks just ahead of this particular truck.

J. M. McCullouch, the operator of the streetcar, testified that all four corners of the intersection were blind corners on account of buildings or fences, that when he reached the east edge of Fourteenth Street he was travelling four to six miles an hour, that when he reached the intersection there was one car on Fourteenth Street on the north side headed south and one standing on the west side of Fourteenth Street, that there was no traffic standing in Fourth Avenue waiting to enter Fourteenth Street the way he was going, that he used all means at hand to prevent the collision.

In support of the motion for a new trial on the ground of newly discovered evidence the plaintiff introduced affidavits of Mrs. S. F. Spurrier, Mrs. Nell Prestridge Smith and Mrs. Edna Carberry (formerly Mrs. Edna Toner) together with the affidavit of the Birmingham attorney representing the plaintiff. The defendant introduced the counter affidavit of Mrs. Nell Prestridge Smith. The substance of the affidavits is set forth as follows: The affidavit of Mrs. Spurrier which was dated November 27, 1946, states that she is a teacher at Ramsay, that she was parked just east of the east curb line of Fourteenth Street on November 11, 1941, at 6:40-45 P.M. waiting for an army convoy to cross Fourth Avenue going south on Fourteenth Street; that a number of trucks in the convoy had already crossed Fourth Avenue; that while she was waiting a streetcar came up from her rear and ran into the intersection without stopping, striking one of the trucks and turning it over; that two of the boys who were thrown from the truck appeared to be dead; that there was no break in the convoy just ahead of the truck that was struck sufficient for her to pass, the trucks being spaced at regular intervals with their lights on; that the streetcar did not appear to slow down; that she did not give her name to the police officer.

The affidavit of Mrs. Smith, which was dated November 27, 1946, shows that she works for the Zoning Board of the City of Birmingham and as to the facts is substantially similar to that of Mrs. Spurrier.

The affidavit of the plaintiff Mrs. Toner, now Mrs. Carberry states that she was the widow of Frank T. Toner, deceased, who lost his life in a truck-streetcar accident in Birmingham, Alabama, on November 11, 1941; that she was a nonresident of Alabama and had never been a resident of Alabama and was not acquainted with anyone in the City of Birmingham, Alabama, at the time of the death of her husband; that she has never received any letters,...