Daniel v. Motes

• Decision Date: 08 March 1934
• Docket Number: 7 Div. 243.
• Citation: 153 So. 727,228 Ala. 454
• Parties: DANIEL v. MOTES.
• Court: Alabama Supreme Court

153 So. 727

228 Ala. 454

DANIEL v. MOTES.

7 Div. 243.

Supreme Court of Alabama

March 8, 1934

Rehearing Denied April 5, 1934.

Appeal from Circuit Court, Cherokee County; A. E. Hawkins, Judge.

Action for damages for personal injuries by Herman Motes against Clyde Daniel. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

Hugh Reed, of Centre, for appellant.

Irby A Keener, of Centre, for appellee.

BOULDIN Justice.

The action is for personal injuries.

The case went to the jury on a count for wanton injury.

One question presented on this appeal, the most vital one, is the refusal of the affirmative charge requested in writing by defendant.

The case arose from a collision between motor vehicles while passing each other on a public highway.

This highway, surfaced with chert, had a width suitable for travel of some 25 feet.

Evidence tends to show that the lanes of greatest travel by vehicles were marked by tracks or ruts, one set of tracks being to the right of the center of the road going each way.

Plaintiff's evidence tends to show he was driving his Ford touring car keeping in the usual zone of travel on the right side, and some 2 1/2 to 4 feet clear of the center; that defendant drove his Chevrolet truck down the center of the road, the left wheel being in the zone or track in which the left wheel of plaintiff's car was approaching; that defendant did not turn to the right, and so the cars came into collision.

The time was about dark; both cars had on the headlights. Defendant's evidence tends to show plaintiff's car had only one headlight.

Without dispute the front portion of the two cars cleared each other, the left wheel of the Ford came in contact with the rear of the truck, and the truck body with the body of the Ford in such way that plaintiff received a broken arm, the left arm resting in and protruding out of the window.

Defendant's version is that he was driving well over on his side of the road, and that the Ford was running on that side, and the collision occurred as defendant swerved his truck still further toward the ditch on his side to miss the Ford.

The truck did not stop. Defendant disclaims any knowledge of a collision at the time.

Plaintiff's evidence tends to show the collision was heard and attracted attention two hundred yards away. Without dispute the left wheel of the Ford was smashed, the brake drum dropped down on the ground, and the Ford whirled across the road to the left before coming to a stop. Several witnesses locate the signs on the ground indicating the point of collision well to the right of the center on plaintiff's side of the road. The road was straight at this point.

Appellant's insistence that there is an entire want of evidence of wantonness is based on the fact that the Ford came in contact with the rear part of the truck, a physical fact, proving that the truck was turning to the right to avoid a collision or else the Ford turned to the left in passing.

This fact would be strongly persuasive, to say the least, that there was no intentional collision. But a wanton collision does not require a positive intent to bring it about. First Nat. Bank of Dothan v. Sanders (Ala. Sup.) 149 So. 848.

Stating the rule applicable to a case of this character, we hold that if A drives his car down the center of the road, and meets B driving his car well on his side of the road, and A, in violation of the law of the road, refuses to turn to the right, and keeps straight ahead with the view of forcing B still further out on his side for fear of a collision, but B continues in the zone he has the right to be, and thus a collision becomes so imminent that it is too late for A to turn to the right and avoid it,...