Britton v. Doehring

• Decision Date: 17 September 1970
• Docket Number: 8 Div. 317
• Citation: 242 So.2d 666,286 Ala. 498
• Parties: Kenneth James BRITTON and Leonard A. Jackson v. Barbara Ann DOEHRING.
• Court: Alabama Supreme Court

Page 666

242 So.2d 666

286 Ala. 498

Kenneth James BRITTON and Leonard A. Jackson v. Barbara Ann DOEHRING.

8 Div. 317.

Supreme Court of Alabama.

Sept. 17, 1970.

Lanier, Shaver & Herring, and John M. Heacock, Jr., Huntsville, for appellant Leonard A. Jackson.

Bell, Richardson, Cleary, McLain & Tucker, and James H. Porter, Huntsville, for appellant Kenneth James Britton.

Humphrey, Lutz & Smith, Huntsville, for appellee.

BLOODWORTH, Justice.

On original submission this case was assigned to another justice of this court. It was recently re-assigned to the writer.

This is an appeal from a $5,000 judgment for plaintiff based upon a jury verdict against the defendants on a wanton count in passenger's suit arising out of an automobile collision.

The primary issues presented are: whether appellant Leonard Jackson's request for the affirmative charge on the wanton count was properly refused; whether appellant James Britton's motion for new trial grounded on the insufficiency of the evidence to sustain the verdict was properly overruled; and, whether evidence that the plaintiff was not using an available seat belt was admissible in reduction of damages. Other issues presented by argued assignments of error will appear and be treated below. Having resolved these issues in favor of appellee, we hold this case should be affirmed.

The suit arose out of a collision between a car driven by Leonard Jackson and a car driven by James Britton, in which plaintiff Barbara Doehring was riding. The collision occurred on a residential street in Huntsville at approximately 8:30 a.m., on January 31, 1966. The temperature at the time was between 2 and 7 degrees above zero, and the street was completely covered with ice and snow. At the point of collision the two cars were moving in opposite directions and were so positioned that their left front fenders came into contact. The collision occurred just as Britton's car emerged from an opaque cloud of vapor emitted from the exhaust of a car parked near the street and just before Jackson's car reached this cloud of vapor.

The standard by which we review the trial court's action in overruling defendant's motion for new trial grounded on insufficiency of the evidence, and in refusing to grant defendant's requested affirmative charge are similar, though the former is more rigorous.

The rule in this state is that in civil cases the question must go to the jury if the evidence or the reasonable inferences arising therefrom furnish a mere gleam, glimmer, spark, the least particle, the smallest trace, a scintilla, in support of the theory of the complaint. Alabama Great Southern Ry. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190.

And we have said that when the affirmative charge is refused and the party who requested the charge appeals, we review the tendencies of the evidence most favorable to the opposite party regardless of any view we may have as to the weight of the evidence; and must allow such reasonable inferences as the jury were free to draw, not inferences which we may think the more probable. (Citations omitted) * * *' Alabama Power Company v. Scholz, 283 Ala. 232, 237, 215 So.2d 447, 450.

And we have said that the decision of the trial court refusing to grant a new trial on the ground of insufficiency of the evidence will not be reversed unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Southern Ry. Co. v. Reeder, 281 Ala. 458, 204 So.2d 808 (1967); Randolph v. Greason, 275 Ala. 89, 152 So.2d 156 (1963).

][4,5] Wantonness has been defined as the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. * * *' Graves v. Wildsmith, 278 Ala. 228, 231, 177 So.2d 448, 451 (1965). It has also been said that knowledge need not be shown by direct proof but may be shown by adducing facts from which knowledge is a legitimate inference. Lewis v. Zell, 279 Ala. 33, 36, 181 So.2d 101 (1965).

From the facts, that the street was 24 feet wide with shoulders 2 feet wide, that the cars collided while traveling in opposite directions, and that each defendant testified that he thought he was driving in the proper lane, it is a legitimate inference that one or both defendants' cars were traveling in the wrong lane of traffic. Taking the tendencies of the evidence most favorable to the plaintiff, it appears that defendant Britton (his car unequipped for snow and ice-covered streets), while driving at approximately 45 miles per hour on an apparently well-traveled street so iced over that neither its center line nor shoulders were visible, proceeded into a cloud of vapor which completely obscured his vision of the road ahead; it further appears that defendant Jackson, driving (with chains on his rear tires) at a lesser speed of 20 miles per hour but otherwise under the same hazardous conditions as Britton, continued at the same speed to the very edge of the same opaque cloud of vapor. We think this evidence is sufficient to sustain the trial court both in its refusal of appellant Jackson's request for the affirmative charge and in its overruling of appellant Britton's motion for new trial grounded on insufficiency of the evidence. Since the latter ruling is the basis for appellant Britton's only argued assignments of error, as to him, the judgment is due to be affirmed.

Appellant Jackson argues as reversible error the giving of plaintiff's written charge No. 7:

'Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger the defendant brings on the disaster.'

He contends that this charge permits the plaintiff to recover on a showing of something less than proximate cause in stating 'the defendant brings on the disaster.'

The language of this charge is taken almost verbatim from the opinion of this court in Fortson v. Hester, 252 Ala. 143, 146, 39 So.2d 649 (1949). See authorities there cited. We have said the fact that a charge is taken almost verbatim from one of our decisions does not necessarily mean it is proper for the court to give it. Hatcher v. Camp, 279 Ala. 475, 481, 187 So.2d 232 (1966).

Nevertheless, we are not persuaded by appellant's argument that giving this charge conveyed to the jury the erroneous notion that plaintiff did not have to prove proximate cause but could recover on something less. Moreover, the court's oral charge, as well as other given written charges properly instructed the jury as to proximate cause.

Appellant Jackson assigns as error the admission of testimony by officer Kirkpatrick, a police officer who investigated the accident, as to the position of the cars on the street when he arrived at the scene of the collision. He contends that other testimony by officer Kirkpatrick, indicating he could not ascertain the position of the center line or the shoulders of the street, demonstrates that this testimony is based upon an inadequate opportunity to observe and thus constitutes opinion evidence.

However, we have held that where there is an opportunity to observe, though slight, a witness may testify as to what he observed, and the circumstances attending his observation merely go to the weight of the evidence, which is, of course, for the jury. Florence Coca Cola Bottling Co. v. Sullivan, 259 Ala. 56, 65, 65 So.2d 169 (1953); Gladden v. State, 256 Ala. 368, 369, 54 So.2d 610 (1951).

The same authorities and reasoning dispose of appellant Jackson's contention that his motion to exclude defendant Britton's testimony ('To the best of my knowledge I was on my side of the road'), was erroneously overruled since Britton also testified that he did not know on which side of the road the collision occurred.

Appellant Jackson further assigns and argues as error the trial court's sustaining plaintiff's objection to the following question asked on cross-examination of officer Albright, one of the investigating officers:

'Q. And so the debris and the path of it would be dependent on the facts that I have named, that is, the speed, and the conditions of the road, and the type cars and the force between the automobiles?'

However the following colloquy demonstrates that substantially the same question had previously been asked of the witness and answered by him without objection:

'Q. That debris and the location of it is dependent upon the speed of the vehicles as they came together, which one had the debris or the parts knocked from it, if there was some--all those factors are a part of the amount of debris and the area of the debris, are they not?

'A. Well, I don't know. I am not a traffic expert. I was never sent off to any school or anything, but there was debris on the road.'

In our view, this renders the error, if any, harmless. Revised Rules of the Supreme Court of Alabama, Rule 45, 279 Ala. XXI, XLI.

Appellant Jackson also argues for reversal the trial court's refusal to give this written charge which he requested:

'The Court charges the jury that the burden of proof in this case rests upon the plaintiff, Barbara Ann Doehring to reasonably satisfy you from all the evidence that the defendant, Leonard A. Jackson was guilty of wanton misconduct in the operation of his automobile on the time and occasion complained of and that the injuries and damages of which the plaintiff complains were the proximate result of any wantonness of the defendant, Leonard A. Jackson in the operation of his automobile, and if your minds are left in a state of speculation or conjecture at most as to whether the defendant, Leonard A. Jackson was guilty of wantonness in the operation of his automobile on that time and occasion or whether the injuries and damages of...