Burr v. Munson
| Decision Date | 03 May 1923 |
| Docket Number | 6 Div. 853. |
| Citation | 209 Ala. 362,96 So. 235 |
| Parties | BURR v. MUNSON. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.
Action for damages by Julia Munson, as administratrix of the estate of Louise Parker, deceased, against Borden Burr. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Reversed and remanded.
Percy Benners & Burr, of Birmingham, for appellant.
Allen & McEwen, of Birmingham, for appellee.
The plaintiff, appellee, was awarded judgment against the appellant in the sum of $250 for the death of Louise Parker caused by contact with appellant's automobile while moving along a public street in the city of Birmingham. The only error assigned brings into question the action of the trial court in refusing general affirmative instruction in appellant's favor.
The instruction requested for defendant should have been given. There was no evidence or inference from evidence tending to sustain the averment that intestate's death was proximately caused by defendant's negligence. The undisputed testimony-given by W. S. Forman, the only eyewitness to the fact and circumstances of intestate's injury, and by defendant-disclosed that Louise Parker moved from the curb of the parkway (in the center of Highland avenue) into and against the side of the front fender of the automobile driven by defendant along the west driveway of that avenue; and that defendant did not see her until after the injury. There was no evidence that defendant either drove the car against her or that he negligently permitted the car to strike her.
On the evidence in this record, the conclusion is inescapable that the sole cause of injury was that the woman, herself, moved into contact with the car. Neither location of wounds on the woman's head nor the posture of her body immediately after the injury instituted conflict with the positive testimony to which reference has been made.
The ambulance driver testified that defendant, in response to his inquiry as to the cause of the injury, said: "That darn fellow trying to drive and didn't know how." The witness testified he did not know what fellow defendant was talking about. The evidence does not otherwise, in any degree, enlighten. The defendant denied making any such statement. The testimony was undisputed that defendant, not Forman, was driving the car....
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Mobile City Lines, Inc. v. Proctor
...was not on notice that children were likely to be present and the driver did not see the child until after the injury. In Burr v. Munson, 209 Ala. 362, 96 So. 235, the pedestrian, a woman, moved from center of roadway into the car and defendant did not see the pedestrian until after the inj......