Crum v. McGhee, 3 Div. 510

• Decision Date: 21 September 1972
• Docket Number: 3 Div. 510
• Citation: 266 So.2d 855,289 Ala. 244
• Parties: J. B. CRUM and Joseph V. Armstrong v. John C. McGHEE.
• Court: Alabama Supreme Court

Page 855

266 So.2d 855

289 Ala. 244

J. B. CRUM and Joseph V. Armstrong v. John C. McGHEE.

3 Div. 510.

Supreme Court of Alabama.

Sept. 21, 1972.

Poole & Poole, Greenville, Miller & Hoffmann, Montgomery, for appellants.

William Hamilton, Greenville, Pitts, Pitts & Thompson, Selma, for appellee.

BLOODWORTH, Justice.

This case was assigned to another justice on original submission. It has been reassigned to the writer for preparation of an opinion for the court.

Defendants appeal from a judgment for plaintiff and from a judgment overruling their motion for new trial.

The complaint claims $50,000 damages for personal injuries arising out of a collision on May 25, 1970 on Gates Road, a public highway in Lowndes County, between plaintiff's 1968 Chevrolet pickup truck and defendant Crum's International tractor truck and trailer being driven by his employee, defendant Armstrong. The complaint is in two counts. Count One alleges negligence, and Count Two alleges wantonness. The jury returned a verdict for the amount sued for.

According to the evidence, Gates Road runs east and west and is 22 feet wide. It is a dirt road. There is only one set of ruts or tracks down the middle of the road, although from our inspection of the pictures of the road, it appears to be wide enough to accommodate two vehicles. There is a wooden bridge or culvert located just to the east of the place where the accident occurred. The bridge is 16 1/2 feet wide and 15 1/2 feet long and is single lane. From the west, Gates Road leads downhill to the bridge. The road also leads downhill to the bridge from the east. The hill to the west of the bridge is the longest. The hill to the east is the steepest. Thus, the bridge is located at the bottom of the two hills. The road is clay on the east side of the bridge and sand on the west side. From halfway down one hill, the evidence is that one can see halfway up the other hill.

Plaintiff's pickup truck was 7 feet wide and 15 feet long. Defendant's tractor was 8 feet wide, 16 to 18 feet long, with 2 axles and equipped with 6 tires, 2 tires on the front axle and 4 on the rear. The trailer was 20 to 24 feet long. It had only 1 axle and dual tires. The total length of tractor and trailer was 40 feet. The tractor was equipped with air brakes, operated by a foot pedal. there was no hand brake control. The tandem trailer was a so-called 'Lo-boy trailer,' a homemade job, and was not equipped with any brakes.

The plaintiff was traveling west on Gates Road downhill approaching the bridge. The road was straight. Defendant Armstrong was traveling east on Gates Road downhill also approaching the bridge. There is a curve in Gates Road on the hill down which defendant Armstrong was driving. Each driver was alone in his vehicle. Plaintiff was traveling about 30 or 35 miles per hour as he approached the bridge. He slowed down just before he got to it. When he got on the bridge he saw the truck and said he tried to get out of the way. When he crossed over the bridge, he turned to his right, or north, to try to get out of the way, he said, but was struck just in front of the left door by the left side of the tractor bumper. Plaintiff's pickup truck was knocked off the road on the north side about 25 feet west of the bridge. It came to rest on its right side in the ditch. Plaintiff was knocked unconscious, but came to as defendant Armstrong was helping him out of his truck. Later, he was taken by ambulance to St. Margaret's Hospital in Montgomery. The tractor trailer jackknifed in the road and came to rest on the north side of the road and west of the bridge, but closer to it than the pickup.

According to defendant Armstrong, he was returning in defendant Crum's International tractor truck, with Lo-boy trailer attached, from the woods where he had unloaded a tractor for defendant Crum's lumber operation. He had never been on Gates Road before. He was going to his home at McKenzie, Alabama. He was traveling at 30 to 35 miles per hour as he started downhill approaching the bridge. At one point, he said he first saw plaintiff's pickup truck just as plaintiff topped the hill. At another point he said he first saw plaintiff when he was halfway down the hill. He continued to observe plaintiff until plaintiff got to the bridge. He could not say how fast plaintiff was going, but it seemed to him that plaintiff was gaining speed as he came down the hill. When he first saw plaintiff, he (Armstrong) was driving in the middle of the road and started putting on his tractor brakes. Armstrong said the road surface was sand and gravel mixed, that it shifted, had no foundation, and that his tires locked and he began to slide. He then released his brakes to reapply them 'and the gravel just kept going, and I just couldn't stop the truck.' He says that his left front fender was about the middle of the road just before the collision. He testified that the collision caused his tractor trailer to jackknife. He was not injured in the wreck. He ran to the plaintiff's truck to see how badly plaintiff was hurt, found he was injured, and helped him out. He then went for help.

Armstrong testified that the trailer had no brakes--that defendant Crum had built the trailer himself. He denied the trailer tires slid, but insisted only the tractor tires did. He admitted the plaintiff was still coming down the hill when he put on brakes, slid on the sand and gravel, and saw that his truck brakes 'wasn't going to hold.' He says he was still going 15 miles per hour when the collision occurred.

I.

The first contention made by defendants pertains to their claim that the proof failed to sustain the allegation that Gates Road was a 'public highway' and that no duty arose not to negligently injure plaintiff, since it must be assumed Gates Road was a private road. There are two answers to this contention.

First, there was proof from the testimony of defendant Armstrong himself that Gates Road was a 'county road.' There were other references throughout the testimony to 'Gates Road' or the 'road.' The testimony was that traffic usually travels in the set of ruts--'that's where everybody travels.' Pictures show it to be a well kept dirt and gravel road. Whether this was sufficient direct evidence to show Gates Road was a public road or not, it appears to us to be sufficient from which the jury might infer this fact. In Smith v. Clemmons, 216 Ala. 52, 54, 112 So. 442, 443 (1927), this court said, viz:

'* * * There was no evidence directed expressly to the point that the 'Bridge road' was a public road, by which appellant means, as we suppose, a road maintained at the public expense, or perhaps, a road which the public were entitled to travel without let or hindrance, but the evidence showed that the accident in which plaintiff's mare was injured occurred on the 'Bridge road,' in Lauderdale county, a road which all the parties were using at the time as a detour from the 'Jackson highway' and from this evidence it was open to the jury to infer that it was a road at the time in common use and so a public road as alleged in some of the counts of the complaint.'

Second, this alleged omission was not called to the trial court's attention, as required by Rule 35, Rules of Practice in the Circuit and Inferior Courts of Common Law Jurisdiction, Title 7, Appendix, Code of Alabama 1940. As a matter of fact, defendants did not ask for the general affirmative charge except as to Count Two (wantonness).

The case of Aplin v. Dean, 231 Ala. 320, 323, 164 So. 737, 739 (1935), is precisely in point, viz:

'There is no merit in defendant's eighth assignment of error. The evidence was sufficient to authorize the jury to find that the accident occurred upon a public highway in Baldwin county, within a half mile of Stockton; that this public highway ran through Stockton to Bay-Minette. One of the witnesses called it the Stockton-Tensaw highway. At most, the omission of proof, in this respect, presented only a question of variance, capable of being supplied by further evidence identifying the highway. The variance, if any in fact, was not called to the trial court's attention, and the court will not be put in error for refusing to give the general affirmative charge for defendant based upon this supposed variance. Rule 35.'

II.

The next contention made by defendants is that the verdict was contrary to the great weight of the evidence--because it shows that defendant Armstrong was not guilty of either negligence or wantonness, and plaintiff was guilty of contributory negligence. We cannot agree.

When a trial judge (as here) refuses to grant a new trial sought on grounds, inter alia, that the verdict is contrary to the great weight of the evidence, or not sustained by the preponderance of the evidence, this court has said no grounds of the motion are more carefully scrutinized. Furthermore, verdicts are presumed correct, and this presumption is strengthened when a new trial is denied by the trial judge. On appeal, our court must review those tendencies of the evidence most favorable to the plaintiff allowing for those inferences which the jury was free to draw. Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961); 15A Ala.Dig., New Trial, k72, 2A Ala.Dig., Appeal & Error, k 930(1). And, this court has long held that we will not reverse unless 'the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.' Cobb v. Malone, 92 Ala. 630, 635, 9 So. 738, 740 (1891).

We have reviewed the evidence in this case and, after indulging all the presumptions in favor of the verdict and the trial court's ruling, we must conclude that the preponderance of the evidence against the verdict is not so decided as to clearly convince us that the verdict is wrong and unjust.

Taking the tendencies of the evidence most favorable to plaintiff, the jury was...