Cox v. Bennett

Decision Date17 June 1948
Docket Number6 Div. 695.
Citation36 So.2d 86,250 Ala. 698
CourtAlabama Supreme Court
PartiesCOX v. BENNETT.

Appeal from Circuit Court, Jefferson County; Leigh M. Clark Judge.

Jackson, Rives & Pettus, of Birmingham, for appellant.

Chester Austin and Clifford Emond, both of Birmingham, for appellee.

STAKELY Justice.

This is a suit brought by Mrs. Edith Bennett, as Administratrix under the Homicide Act, Code 1940, Tit. 7, § 123, for the wrongful death of her husband, Charles Lincoln Bennett. The Star Provision Company and Thomas E. Cox were named as parties defendant. The plaintiff struck The Star Provision Company as party defendant. The case was submitted to the jury on one count charging simple negligence, the plea of the general issue and the plea of contributory negligence. There was verdict and judgment for the plaintiff and hence this appeal.

Charles Lincoln Bennett was fatally injured on September 29, 1946 while walking east on Avenue C along a public sidewalk at or near the Southwest intersection of Avenue C and 21st Street South, in the City of Birmingham. He was struck by a truck of the Star Provision Company, which was being backed across the sidewalk by an employee of Thomas E. Cox from out of a filling station operated by Thomas E. Cox. There was no proof that the horn was blown or any signal given that the truck was about to back on to the sidewalk. The truck had been left at the filling station to be washed and lubricated.

Assignment No. 1

In his opening argument to the jury counsel for plaintiff read to the jury, over the objection of defendant, § 1325 of the Municipal Code of the City of Birmingham, as follows:

'It shall be unlawful for the operator of any vehicle to emerge from an alley, stable, garage, filling station, or private driveway into or upon any sidewalk, street or alley, unless he has first brought such vehicle to a complete stop within twenty feet of such sidewalk, street or alley area into or upon which he is about to enter.'

The objection was that there was no evidence in the case that the truck did not stop within twenty feet before reaching the sidewalk. The objection was overruled. The court had judicial knowledge of the ordinance. General Acts 1943, p. 183. We quite agree that there should be some evidence in the record showing a violation of a particular statute or ordinance before it becomes relevant on the question of actionable negligence and therefore the subject of comment to the jury. Yarbrough v. Carter, 179 Ala. 356, 60 So. 833; Ubelmann v. American Ice Co., 209 Pa. 398, 58 A 849; 45 C.J. p. 726.

Tennis R. Russell, a witness for the plaintiff, testified that immediately prior to and at the time of the accident he was walking north on the west side of 21st Street by the side of the filling station approaching the southwest corner of the intersection of Avenue C and 21st Street when he first observed the truck involved in the accident. At that time the truck was approximately in front of the office part of the filling station which is located up inside the station approximately twenty feet back from the sidewalk. At that time the truck was moving backwards and was passing the office at a speed estimated by the witness as being a little bit faster than a man would normally walk. While the witness testified that he did not continue to watch the truck and did not know whether it stopped before it got to the sidewalk, he did testify as to the time which elapsed from the time he first saw it backing until he saw the man fall behind the truck out toward the street. He gave the following answers to the following questions:

'Q. How much time elapsed from the time you saw it backing up until it happened, do you have any judgment? A. Yes, sir, a second or two. A very short time. Walking down the street over this way as one does walk down the street, I had walked only a few steps.

'Q. I believe you said it was just a second until it occurred? A. A very short time. I had taken only a few steps.

'Q. You had just taken a few steps? A. Yes, sir. If it had been any long time to amount to anything, I would have been all the way to the corner when it happened.'

The jury had before it a diagram of the location where the accident occurred and photographs showing the location and structure of the filling station on the corner of Avenue C and 21st Street. Under the evidence tending to show the distance travelled by the truck and the time which elapsed during its course, the jury had the right to infer that it did not stop within twenty feet of the sidewalk as required by the ordinance.

Assignments 2 and 3.

Assignment of error No. 2 is based on the ruling of the trial court in permitting counsel to interrogate the panel of prospective jurors as to whether any of them had relatives connected with the Aetna Casualty and Surety Company. Assignment of error No. 3 is based on the refusal of the trial court to grant a mistrial after permitting counsel for plaintiff to make this inquiry.

This case was originally commenced against two defendants, one of which was the Star Provision Company. It owned the truck which struck the deceased. The Star Provision Company carried public liability insurance in the Aetna Casualty and Surety Company. The truck covered by this insurance was in the possession of the defendant Thomas E. Cox to be washed and lubricated when the employee of...

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6 cases
  • Prince v. Lowe, 5 Div. 601
    • United States
    • Alabama Supreme Court
    • February 24, 1955
    ...part, for any judgment that might be rendered against the defendant."' Fortson v. Hester, 252 Ala. 143, 39 So.2d 649, 651; Cox v. Bennett, 250 Ala. 698, 36 So.2d 86. Assignment No. 2. The insistence that defendants were entitled to the affirmative charge with hypothesis is based on the cont......
  • Shelby County v. Baker
    • United States
    • Alabama Supreme Court
    • April 9, 1959
    ...though the matters of which inquiry is made are not a disqualification.' Dyer v. State, 241 Ala. 679, 4 So.2d 311, 313; Cox v. Bennott, 250 Ala. 698, 36 So.2d 86; Redus v. State, 243 Ala. 320, 9 So.2d 914; Rose v. Magro, 220 Ala. 120, 124 So. 296. 'The right of inquiry under the statute is ......
  • Clark v. State
    • United States
    • Alabama Supreme Court
    • August 28, 1975
    ...under the statute is a broad right just so it is not exercised in bad faith or merely designed to prejudice the case,' Cox v. Bennett, 250 Ala. 698, 36 So.2d 86 (1948). This court has held many times that under this section the right to question jurors remains within the sound discretion of......
  • Avery Freight Lines, Inc. v. Stewart, 7 Div. 175
    • United States
    • Alabama Supreme Court
    • March 19, 1953
    ...properly raised. The inquiry is conceded to be one available to plaintiff's counsel under section 52, Title 30 of the Code. Cox v. Bennett, 250 Ala. 698, 36 So.2d 86. Under the statute counsel are not confined in their inquiry to matters which disqualify a juror, but it extends to what is a......
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