Crotwell v. Cowan

• Decision Date: 27 October 1938
• Docket Number: 6 Div. 266.
• Citation: 184 So. 195,236 Ala. 578
• Parties: CROTWELL ET AL. v. COWAN ET AL.
• Court: Alabama Supreme Court

184 So. 195

236 Ala. 578

CROTWELL ET AL. v. COWAN ET AL.

6 Div. 266.

Supreme Court of Alabama

October 27, 1938

Appeal from Circuit Court, Jefferson County, Bessemer Division Gardner Goodwyn, Judge.

Actions by Mrs. Marie J. Cowan and her husband, Prude T. Cowan against Mrs. Myrtle Crotwell and Mrs. Daisy Daniel for injuries sustained by Mrs. Marie J. Cowan and for damages to automobile resulting from automobile collision at an intersection. From judgment for plaintiffs, defendants appeal.

Reversed and remanded.

Whether the intersection at which the automobile collision occurred was a blind crossing was mixed question of law and fact for ultimate jury decision under appropriate instructions and not the subject of opinion testimony. Code 1928, § 1397(53) subd. 3.

The following charges were refused to defendants:

"1. I charge you, Gentlemen of the jury, that if you are reasonably satisfied from the evidence that Mrs. Marie J. Cowan was guilty of negligence on the occasion complained of, then you cannot award the plaintiff, Mrs. Marie J. Cowan, any damages, and your verdict must be in favor of the defendants, and I charge you that negligence is the doing of an act or the failure to do an act which an ordinarily prudent man under the same and similar circumstances would not do or would not fail to do."

"14. I charge you, Gentlemen of the jury, that as a matter of law that the law presumes that Mrs. Marie J. Cowan on the occasion complained of was keeping a lookout ahead along the highway, and the law will further presume that she saw the automobile of the defendants prior to the collision."

"27. I charge you, Gentlemen of the jury, that before you can find for the plaintiff, Marie J. Cowan, under counts 1, 2 and 4 of her complaint, you must be reasonably satisfied from the evidence that Marie J. Cowan was not guilty of any negligence whatsoever which proximately contributed to or caused her injury and damage on the occasion complained of."

"29. I charge you, Gentlemen of the jury, that if you are reasonably satisfied from the evidence that an ordinarily prudent man, under the same or similar circumstances, would not have driven an automobile into the place where said collision occurred on the occasion complained of, then I charge you Mrs. Marie J. Cowan was guilty of negligence and as a matter of law she cannot recover under the 1st, 2nd or 4th counts of her complaint."

"33. I charge you, Gentlemen of the jury, that if you are reasonably satisfied from the evidence that the plaintiff's alleged injuries were proximately caused as a result of an accident, then you cannot find a verdict against the defendant."

"47. I charge you, Gentlemen of the jury, that if you are reasonably satisfied from the evidence that the automobile driven by Marie J. Cowan and the automobile operated by the defendants approached or entered an intersection at approximately the same time on the occasion complained of and that the automobile driven by Marie J. Cowan was on the left of the automobile operated by the defendants, it became and was the legal duty of Marie J. Cowan to yield the right of way to the automobile operated by the defendants, and if you are further reasonably satisfied that Marie J. Cowan failed to yield such right of way, then I charge you that she was guilty of negligence as a matter of law on the occasion complained of, and you cannot find against the defendants under counts 1, 2 and 4 of the complaint of Marie J. Cowan."

"51. I charge you, Gentlemen of the jury, that before you will be authorized to find in favor of the plaintiff in this case you must be reasonably satisfied by the evidence that the defendants were guilty of negligence on the occasion complained of which proximately caused the plaintiff's injuries, and the plaintiff must further prove to your reasonable satisfaction that Mrs. Marie J. Cowan was herself not guilty of the slightest negligence which proximately contributed to the plaintiff's injury and damage on the occasion complained of."

"A. I charge you, Gentlemen of the jury, as a matter of law that when two vehicles approach an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, and also that the driver of a vehicle when approaching within fifty feet and in traversing an intersection shall drive his vehicle at a speed of fifteen miles per hour when the driver's view is obstructed, and I charge you that a driver's view shall be obstructed when at any time during the last fifty feet of his approach to such intersection he does not have a clear and uninterrupted view of such approach to such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred feet from such intersection. I further charge you if you are reasonably satisfied from the evidence that Mrs. Cowan violated the law in any way as above set forth, she was guilty of negligence as a matter of law, and the plaintiff cannot recover of the defendants and if you are further reasonably satisfied from the evidence that both Marie Cowan and the defendants violated the law in any way as herein set forth on the occasion complained of, then I charge you the law leaves them where it found them, and the plaintiff cannot recover of the defendants."

"A-15. I charge you Gentlemen of the jury, if you believe the evidence in this case you cannot find for the plaintiff and against the defendant Mrs. Daisy Daniel under count 4 of the complaint."

Ross, Bumgardner, Ross & Ross, of Bessemer, for appellants.

G. P. Benton, of Fairfield, and Edward H. Saunders, of Bessemer, for appellees.

BROWN Justice.

The appellee, Marie J. Cowan, was driving the Ford Automobile of her husband, Prude T. Cowan, on 28th Avenue of the Bessemer Coal Iron & Land Company's Addition to Bessemer, Alabama, when said Ford was run upon or against by the Buick Automobile of the appellant Daniel, driven by the appellant Crotwell.

In the collision the Ford was damaged and Mrs. Cowan received severe personal injuries.

Mrs. Cowan sued Daniel and Crotwell, claiming damages for her personal injuries, and Cowan, the husband, sued the same defendants, claiming damages for the loss of service and society of his wife, and property damages to his said Ford.

These cases were consolidated and tried as one, resulting in separate verdicts in favor of each plaintiff, and from the judgment on these verdicts this appeal is prosecuted. On the submission here, the appellants, by leave of the court, severed in their assignments of error.

Mrs. Cowan's case was submitted to the jury on counts one and four of her complaint, a special plea of recoupment by each of the defendants claiming damages for personal injuries, the general issue, and contributory negligence, pleaded in short by consent. The husband's case was submitted on counts one and two of his complaint, like special pleas of recoupment as in the other case, the general issue and contributory negligence pleaded in short by consent.

Count one in Mrs. Cowan's complaint ascribed her personal injuries to "the negligence of the defendants in operating their automobile on said occasion."

The fourth count avers that: "The defendant Mrs. Myrtle Crotwell, was then and there at the same time and place operating an automobile, which belonged to defendant Mrs Daisy Daniel, who was the owner of the motor car or automobile which was being operated by Mrs. Myrtle Crotwell. The said Mrs. Myrtle Crotwell, on the day and date aforesaid, was, and long had been a careless, indifferent, heedless, and reckless, and incompetent driver of such car, so that said car, in her hands was a danger(ous) and deadly agency, of which facts defendant Mrs. Daisy Daniel had been duly informed; yet, with information of such facts, she allowed the said Mrs. Myrtle Crotwell to propel said car along the public highways of this State and County, at will, and intrusted its management and operation to her, and while on the day and date aforesaid, she was engaged in the running of said car along a public highway, to-wit: Near 28th Avenue and 18th Street, Bessemer, Alabama, and in broad daylight, the said Mrs. Myrtle Crotwell, so negligently,...