Birmingham Electric Co. v. Turner

• Decision Date: 06 March 1941
• Docket Number: 6 Div. 818.
• Citation: 1 So.2d 299,241 Ala. 66
• Parties: BIRMINGHAM ELECTRIC CO. v. TURNER
• Court: Alabama Supreme Court

1 So.2d 299

241 Ala. 66

BIRMINGHAM ELECTRIC CO. v. TURNER

6 Div. 818.

Supreme Court of Alabama

March 6, 1941

Rehearing Denied March 27, 1941.

Appeal from Circuit Court, Jefferson County; C.B. Smith Judge.

Lange, Simpson, Brantley & Robinson and W.P Rutledge, all of Birmingham, for appellant.

Taylor & Higgins and Fred G. Koenig, Jr., all of Birmingham, for appellee.

THOMAS Justice.

This is an action for damages for personal injuries received by appellee against appellant as a result of a collision between an automobile in which she was riding and a street car owned by appellant.

The case was submitted to the jury on count one, charging simple negligence; and on count two, charging wantonness. The defendant filed pleas in short by consent, the jury returning a verdict in favor of appellee for $750. Appellant filed motion for a new trial which was overruled, and from this action of the trial court this appeal is prosecuted.

Facts regarding the accident, stated briefly, are as follows: The material parts of the testimony of each witness are set forth in the arguments of counsel on the question of whether or not the wanton count should have been submitted to the jury.

The accident occurred on 20th Street, South, between 13th and 14th Avenues, in the City of Birmingham. The automobile was going north and the street car was going south. On the east side of the street there was, before the accident, a parked automobile. As the plaintiff's automobile and the street car were approaching each other, this parked car suddenly pulled away from the curbing, and caused the driver of the plaintiff's car, in order to avoid a collision with the automobile, to run onto the street car tracks in front of the approaching street car. There is evidence in the case that prior to the accident, the motorman was looking to his right, and not observing traffic ahead of him, but this fact is denied by the motorman driving the street car.

See the recent case of Alabama Power Co. v. Dunlap, Ala.Sup., 200 So. 617, as to the ruling of giving or refusing the affirmative instruction in a wanton count, which stated generally is to the effect that it can be said that an act is wantonly done, if it be shown that the party charged with committing the wrong had knowledge of the danger, present or impending, to the other party. The trial court stated the rule as follows: "To constitute wantonness (it must be shown), that the party charged, or his servant acting for him in the premises, was conscious of the conduct which caused the injury, and conscious from his knowledge of the existing conditions, that injury would likely or probably result from his conduct or omission to act, and with reckless indifference to consequences he consciously and intentionally did the wrongful act or omitted to do or discharge some known duty in the premises which produced the injurious result declared for in the complaint."

Authorities in point are: Feore v. Trammel, 212 Ala. 325, 102 So. 529; Becknell v. Alabama Power Company, 225 Ala. 689, 143 So. 897, 899; Lambert v. Southern Ry. Co., 214 Ala. 438, 108 So. 255; Alabama Power Co. v. Conine, 210 Ala. 320, 97 So. 791; Shepard v. L. & N.R.R. Co., 200 Ala. 524, 76 So. 850; Birmingham Ry., L. & P. Co. v. Cockrum, 179 Ala. 372, 60 So. 304; Birmingham Ry. L. & P. Co. v. Jung, 161 Ala. 461, 49 So. 434, 18 Ann.Cas. 557; Bradley v. Johnson, 212 Ala. 330, 102 So. 710; Louisville & N.R. Co. v. Heidtmueller, 206 Ala. 29, 89 So. 191.

In Feore v. Trammel, 212 Ala. 325, 330, 102 So. 529, 533, it is said: "It follows from the decisions that to establish a willful or intentional injury the proof must establish the same was inflicted designedly and intentionally; to constitute wantonness, that the party charged, or his servant acting for him in the premises, was conscious of the conduct which caused the injury, and conscious, from his knowledge of the existing conditions, that injury would likely or probably result from his conduct or omission to act, and with reckless indifference to consequences he consciously and intentionally did the wrongful act or omitted to do or discharge some known duty in the premises which produced the injurious result declared for in the complaint. * * * " (Italics supplied.)

In Bradley et al. v. Johnson, 212 Ala. 330, 102 So. 710, 711, Mr. Chief Justice Anderson, writing for this court said: It was incumbent upon the plaintiff to prove wantonness as charged, and we may concede that the conditions surrounding or attending the injury afforded ample evidence for the jury to find that there was wantonness, had there been any proof to show or create a reasonable inference that the defendants' motorman was conscious of the fact that his conduct would probably result in or produce injury. The proof showed that this was a greatly used crossing during the hour when plaintiff was injured; that the car was going from 8 to 20 miles an hour without signal or warning; and that the motorman instead of keeping a lookout was looking to the rear, but there is nothing to show that said motorman was familiar or acquainted with said crossing, and to hold that he was, would be mere conjecture or speculation. There was no proof of the length of time he had been running the car or that he had ever before made this trip at that hour of the day. Louisville & N.R.R. v. Heidtmueller, 206 Ala. [29], 30, 89 So. 191. The plaintiff relied upon the conduct of the motorman as establishing his charge of wantonness; therefore, in order to do so, it was necessary to show facts from which the jury could infer that said motorman was conscious of his conduct and conscious from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and, with reckless indifference to consequences, he consciously and intentionally did some wrongful act or omitted some known duty which produced the result. * * * " (Italics supplied.)

This is a suit by a passenger in the colliding automobile. As to her it is established that as a passenger in the car, she is not chargeable with the negligence of the driver, and must make a case of negligence on the part of the defendant as a proximate cause. Roberts v. Louisville & N.R. Co., 237 Ala. 267, 186 So. 457; Southern Ry. Co. v. Lambert, 230 Ala. 162, 160 So. 262; Southern Ry. Co. v. Miller, 226 Ala. 366, 147 So. 149.

The evidence is in conflict as to simple negligence. Hence the affirmative instruction as to this phase of the evidence was without error. McMillan v. Aiken, 205 Ala. 35, 88 So. 135.

From the foregoing well-established principles, we will examine the evidence to judge the action of the trial court in refusing to give the general affirmative instruction requested in writing by the defendant as to...