Boyette v. Bradley

• Citation: 100 So. 647,211 Ala. 370
• Decision Date: 29 May 1924
• Docket Number: 6 Div. 989.
• Parties: BOYETTE v. BRADLEY ET AL.
• Court: Supreme Court of Alabama

100 So. 647

211 Ala. 370

BOYETTE v. BRADLEY ET AL.

6 Div. 989.

Supreme Court of Alabama

May 29, 1924

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action by Willie F. Boyette against Lee C. Bradley and J. S. Pevear as coreceivers of the Birmingham Railway, Light & Power Company, to recover damages for personal injuries alleged to have been received when a street car collided with the automobile in which he was driving. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Plaintiff's witness Adams testified that he was a passenger on the street car which collided with plaintiff's automobile; that it was running about 40 miles an hour, racing with a jitney; that he did not see the automobile before it was hit, but saw it afterwards.

On cross-examination he testified that he had only known the Boyettes since the accident; that he was painting at the time and had done one job for a Mr. Jones; that he had been in Birmingham for four or five months prior to the accident, and had not been painting all the time.

Over plaintiff's objection the witness was asked what other jobs he had had, and replied that he had had four or five different ones-painting a dwelling on Third avenue and working for the Frisco Railroad as a deputy under the sheriff during the strike.

Other evidence for the plaintiff tended to show that his car started to turn and cross the street car track; that the congestion of traffic forced his car to stop on the track and that it was struck by the rapidly approaching street car.

The tendency of defendant's evidence was that the driver of plaintiff's car turned around upon the track, in the middle of the street, and was moving at the time of the impact; that the street car was traveling 20 to 25 miles an hour, and that there was no congestion of traffic or anything to obstruct the view of the approaching street car by plaintiff's driver.

Defendant's witness Daniels testified that he was driving in an ambulance near the scene of the accident; that he witnessed the collision; that plaintiff's car was turning around in the middle of the street, and across the track, that it was moving when struck; that he observed no congestion or obstruction to plaintiff's driver's view.

Over plaintiff's objection and motion to exclude, this witness was asked how far, in his judgment, the street car ran after the collision, and answered:

"I stopped there as I came on back, *** and looked, and *** I don't think the car ran over- The car stopped, I imagine, about 20 or 30 feet, not over 35 feet."

The witness further testified that there were signs of the automobile having been dragged, and that he based his judgment upon these signs.

The following charges were given at defendants' request:

"3. The court charges the jury that, if you believe from the evidence that the plaintiff sustained his injuries as the proximate result of a mere accident, it is your duty to return a verdict in favor of the defendants."

"6. The court charges the jury that, if you believe from the evidence that the driver of the automobile in which plaintiff was riding on the occasion of the collision between the automobile and the street car was guilty of negligence and that such negligence on his part was the sole proximate cause of plaintiff's injuries, it is your duty to return a verdict in favor of the defendants."

"7. The court charges the jury that if you believe from the evidence that the plaintiff's brother, in driving the plaintiff's automobile onto or near the defendant's track was guilty of negligence and that such negligence on his part was the sole proximate cause of plaintiff's injuries, it is your duty to return a verdict in favor of the defendants.

"8. The court charges the jury that the driver of the automobile in which plaintiff was riding, in approaching the defendants' track for the purpose of crossing it, was under the duty to keep a continuous lookout for approaching street cars before entering upon the track, or so near thereto as that a passing street car would strike said automobile."

"9. The court charges the jury that the motorman of a street car operating same in a proper manner has the right to presume that an adult driver of an automobile driving toward the street railroad track for the purpose of crossing same will look for approaching street cars before entering upon the track until it becomes reasonably apparent to the contrary from the conduct of such driver of such automobile."

"12. The court charges the jury that it was the duty of the driver of the automobile in which plaintiff was riding before driving onto the defendants' track to first look in both directions for approaching street cars, and a failure so to do, if you believe from the evidence there was such failure, constitutes negligence on his part."

"13. I charge you, gentlemen of the jury, if you believe from the evidence that the plaintiff's brother in charge of the automobile in which plaintiff was riding was negligent in running the automobile onto or dangerously near the defendants' street car track in front of the defendants' street car, and that this negligence on his part was the sole proximate cause of the collision and plaintiff's injuries, then you should find a verdict in favor of the defendants."

"14. The court charges the jury that the motorman of a street car operating same in a proper manner has the right to presume that an apparent adult person approaching the track in an automobile with the purpose of crossing the track will exercise reasonable care in driving the automobile across the track, and he has the right to indulge this presumption until it becomes reasonably apparent to him that said person is heedless or unaware of danger."

"15. The court charges the jury that it was the duty of the driver of the automobile in which plaintiff was riding to keep a continuous lookout for approaching street cars before attempting to drive across defendants' track, and a failure to keep such lookout, if you believe from the evidence there was such failure, constitutes negligence on his part."

"17. I was charge you, gentlemen of the jury, that it was the duty of the driver of the automobile in which plaintiff was riding before driving onto the defendants' track for the purpose of crossing it to look in both directions for approaching street cars, and a failure on his part so to do, if you believe from the evidence that there was such a failure, constitutes negligence on his part, and the court further charges the jury that if you believe from the evidence that such negligence on his part was the sole proximate cause of the collision and plaintiff's injuries, then your verdict must be in favor of the defendants."

Sayre and Gardner, JJ., dissenting.

Black, Harris & Foster, of Birmingham, for appellant.

Tillman, Bradley & Baldwin, E. L. All, and John S. Coleman, all of Birmingham, for appellees.

THOMAS J.

The appeal is in a double aspect-from the original judgment, and from that overruling the motion for a new trial. Liverpool & London & Globe Ins. Co. v. Lowe, 208 Ala. 12, 93 So. 765; Lewis v. Martin, 210 Ala. 401, 98 So. 635.

The complaint contained counts for simple and subsequent negligence and for wantonness on defendants' part. Defendants pleaded the general issue and contributory negligence.

After the parties were in the automobile, plaintiff states, on cross-examination, what happened, as follows:

"We hadn't driven any way from the house before commencing to turn across the street car track, except coming right on out. We were driving across the track; the house is practically opposite the place of the accident. It must have taken place angling from the house. After we got in the car we drove about 15 or 20 feet. My brother had been driving my car with my permission. The traffic was very heavy on both sides. The congestion would run in before you in less than a second's time. You could see everything before going on the street car track, that you could see after you got on it; everything was in plain view. There was nothing to keep you from seeing the automobiles. I think the street is straight and there are two street car tracks in it. There wasn't anything to keep the automobile driver from seeing street cars on both tracks in both directions. There wasn't anything to keep him from seeing the automobile traffic along there at that time. I saw the street car when it was about 20 feet away. I was keeping a lookout the best I could for everything in the way. We were trying to get out. I was keeping a lookout for street cars."

The motorman testified:

"The automobile was out in the street when I first noticed it-it was moving; it was approaching sorter towards me; it was making its turn when I first noticed it. When it came in contact with my street car, it was right on the corner of my car-struck the-left-hand corner of my car struck the right-hand front door of their car. I couldn't say whether the wheels of the automobile got on my track or not; if it did it just kind of got on the edge sorter. The automobile with reference to my track was kind of angling, making a circle; it never had stopped, it was making a turn from the south side of the street to the north side. I was on the track coming to Birmingham, on the track where the curb was to my right. With reference to this south curb and the south track, the automobile was on the pavement over there; it was making its turn just off of the pavement when I first noticed it. It was just turning off the pavement when I first noticed it. It was turning back this way. The automobile did not stop from the time I first noticed it until the impact actually occurred. When I first noticed it, it was turning off the

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