Conner v. Foregger

• Citation: 242 Ala. 275,7 So.2d 856
• Decision Date: 22 January 1942
• Docket Number: 5 Div. 342.
• Parties: CONNER v. FOREGGER.
• Court: Supreme Court of Alabama

7 So.2d 856

242 Ala. 275

CONNER v. FOREGGER.

5 Div. 342.

Supreme Court of Alabama

January 22, 1942

Appeal from Circuit Court, Macon County; Albert Hooten, Judge.

Wm M. Russell and Powell & Powell, all of Tuskegee, for appellant.

Wm. C. Hare, of Tuskegee, and Denson & Denson and L.J. Tyner, all of Opelika, for appellee.

BOULDIN Justice.

A little boy, four years of age, was killed on a public highway by a passing automobile. Suit was brought under the homicide statute, Code 1940, Tit. 7, § 123. The complainant charged negligence on the part of the motorist, in the operation of the car, as the proximate cause of the child's death. On the trial the jury returned a verdict for defendant.

A motion for new trial upon the ground that the verdict was opposed to the great weight of the evidence was overruled.

This ruling is assigned as error, and presents the question most pressed on this appeal.

Negligence, in such cases, is want of ordinary care; the doing of what a person of ordinary prudence would not do, or the failure to do what a person of ordinary prudence would do under like conditions or circumstances, which act or omission proximately causes the result complained of. The circumstances of each case dictate the course of conduct demanded by ordinary care.

Some circumstances may be said to be present in all such cases among them the fact that the vehicle is an automobile.

It is designed for comfort and speed in travel. But incident thereto is momentum, a resultant of weight and speed.

The danger to life and limb from its operation on the highways enters into the question of ordinary care. The operator is wanting in ordinary care if he is not capable of operating same with ordinary prudence. Questions of reasonable speed proper lookout, and preventive action when a child of tender years suddenly appears on the highway, turn on the facts of the particular case. The test is what care would a man of ordinary prudence have exercised under the circumstances. Clark v. Farmer, 229 Ala. 596, 599, 159 So. 47, and authorities cited.

The defendant had motored from Atlanta, Georgia. The accident occurred on Auburn-Tuskegee Highway, as he approached and entered the outskirts of Tuskegee. He had not reached any speed limit zone. Clearly the little boy attempted to run across the highway in front of the approaching car. Strong testimony tends to show he was with larger boys when first appearing on the highway; the larger boys, seeing imminent danger, stopped or drew back after starting across. There were several eyewitnesses; others were on the ground very quickly. A detailed statement of the testimony would serve no good purpose. There was the usual divergence in the evidence of speed, in the distance and the exact location of skid marks on the road, as well as the precise point of the collision.

Suffice to say the questions of ordinary care in the matter of speed, in the discovery of peril, and in the preventive measures taken in emergency, were all for the jury.

Upon full consideration we are of opinion the evidence fully supported the verdict of the jury.

The other questions for review relate to written charges given at the request of defendant, numbered 4, 14, 19, 10, 11, 12, and unnumbered charges, which we designate a and b.

The criticism of charge 4 is that it predicates non-liability on inability to avoid the injury after the...