DeBardeleben v. Tynes
| Citation | 290 Ala. 263,276 So.2d 126 |
| Parties | Charles F. DeBARDELEBEN, III v. Mrs. Carolyn N. TYNES. Mrs. Carolyn N. TYNES v. Charles F. DeBARDELEBEN, III. SC 5, 5--X. |
| Decision Date | 22 February 1973 |
| Court | Supreme Court of Alabama |
Rives, Peterson, Pettus, Conway & Burge and W. Eugene Rutledge, Birmingham, for appellant.
Spain, Gillon, Riley, Tate & Ansley and S. R. Starnes and Ollie L. Blan, Jr., Birmingham, for appellee.
This is an appeal from a judgment entered pursuant to a jury verdict in favor of the defendant. The plaintiff, Charles F. DeBardeleben, III, claimed damages for the death of his minor son allegedly caused by the negligence of the defendant, Mrs. Carolyn N. Tynes.
The complaint as finally amended, went to the jury on two counts, Count B and Count C Count B avers that the defendant invited the plaintiff's son William, a child under seven years of age, to her home for the purpose of playing with her own son; that the defendant picked up the plaintiff's child at his school and took him to her home, and while the plaintiff's son was at the defendant's home 'the defendant negligently caused or negligently allowed her automobile to run over or upon the said minor child of the plaintiff and as a proximate consequence of the aforesaid negligence of the defendant, plaintiff's said minor child was killed.'
Count C avers that the defendant voluntarily undertook to assume the custody, care, and control of the plaintiff's son, a child under seven years of age, and while the child was under the custody, care, and control of the defendant, 'the defendant negligently caused or negligently allowed her automobile to run over or upon the said minor child of the plaintiff and as a proximate consequence of the aforesaid negligence of the defendant, plaintiff's said minor child was killed.'
Each of the counts concluded with the statement that the cause of action was based upon and brought under Section 119, Title 7, Code of Alabama 1940.
The evidence is not in any serious conflict, particularly as to its application to the points raised on this appeal. The evidence tends to show that the defendant's son Norman and the plaintiff's son William attended the same kindergarten school. They were friends. One night the defendant's son Norman telephoned William and invited him to his house the next afternoon. After clearance with the respective mothers, the invitation was accepted.
The next afternoon the defendant picked up Norman and William at school and took them to her house. The defendant's two year old daughter Carrie accompanied the defendant on the trip to the school.
The home of the defendant and her husband faces on Ridge Drive in Mountain Brook. The lot slopes back from Ridge Drive. A sloping driveway runs from the street to the rear of the home where it ends at an area used in turning automobiles around. A sand box for the defendant's children is in this area. A stone wall separates this portion of the lot from a lower portion. Steps in the vicinity of the sand box lead to the lower yard.
Returning to her home with the two young boys and her small daughter in the automobile with her, the defendant stopped her automobile near a walkway leading from the driveway to the front of the house.
The defendant talked to the two boys a few moments prior to their leaving the automobile to go to the sand box.
The defendant, followed by Carrie, then went into a portion of the yard to change the location of a lawn sprinkler. The defendant suggested to Carrie that she not try to help in moving the sprinkler, and Carrie walked back toward the automobile. The defendant observed Carrie trying to get into the automobile, the door being open, and called to her to stop. Carrie turned and faced the defendant who then proceeded with moving the sprinkler. Carrie had never before been able to get in the automobile unassisted.
Hearing a noise, the defendant looked and saw the automobile rolling down the driveway, with Carrie clutching onto the steering wheel, either in the automobile, or partly so.
The defendant ran after the automobile which came to a stop with the front end partly on the stone retaining wall, and one front wheel on the steps leading to the lower yard. Peering under the automobile the defendant saw William pinned underneath. She then rushed into the house and called the police.
An Alabama Power Company crew of eight men were working about 300 feet from the defendant's home. Hearing a loud noise, followed by screams, they rushed to the scene. They lifted the front end of the automobile and rolled it back off the body of William. During the procedure the defendant came out of the back door of her home. She was in a highly emotional state, and fell once or twice in walking around the scene.
None of the crew members could recall whether the door of the automobile was open when they observed it, nor did any of them look to see whether the shift lever was in 'park.' One crew member, Howard Mooney, testified that he did observe the brake and 'it appeared to be down.' The other crew members did not observe the brake.
Lawrence Todd, Jr., a legal photographer, was called by the Mountain Brook police and directed to go to the scene. He arrived about fifteen minutes after the accident had occurred. A police car was leaving with William when he arrived and the defendant's automobile was at the sand box. He made a photograph of the interior of the defendant's automobile showing the brake, and it appears to be mashed down and so appeared when he looked at it. Todd also saw police officer Hardesty release the brake pedal when he moved the automobile.
The automobile rolled back when lifted and pushed back by the Power Company workmen, that is, the wheels did not slide. However, two witnesses testified that some automobiles will roll backwards even though the brakes are on.
Mr. DeBardeleben, the plaintiff, testified that on the evening of the accident Mrs. Tynes came to the DeBardeleben home. In her account of the accident at that time, she stated that when she had stopped the automobile in her driveway, she had placed the shift lever in 'park,' had put on the foot brake, and had turned the front wheels to the right. As to her daughter Carrie's position when the automobile began to roll, Mrs. Tynes had stated that 'the little girl at one time was in the car, and at one...
To continue reading
Request your trial
-
Butler v. Town of Argo
...at trial. Ex parte Krupp Oil Co., 727 So.2d 85 (Ala.1998); Ex parte Weyerhaeuser Co., 702 So.2d 1227 (Ala.1996); DeBardeleben v. Tynes, 290 Ala. 263, 276 So.2d 126 (1973). Because Butler has failed to present this Court with an adverse ruling for review, and because Butler is not challengin......
-
Kerns v. Sealy
...1328 (11th Cir.1982) (doctrine of res ipsa loquitur "may be used only to prove negligence" under Alabama law); DeBardeleben v. Tynes, 290 Ala. 263, 276 So.2d 126, 129 (1973) ("The rationale and result of the doctrine of res ipsa loquitur is to raise a rebuttable presumption" of negligence).......
-
Derwinski v. Nichols
...a party receiving a verdict and judgment in its favor can bring an appeal only to question the amount of damages. DeBardeleben v. Tynes, 290 Ala. 263, 276 So.2d 126 (1973); Prescott v. Fletcher, 379 So.2d 333 Jury verdicts are presumed to be correct, and this presumption is further strength......
-
Ex parte Moebes
...can appeal only on the issue of adequacy of damages awarded." Ex parte Weyerhaeuser Co., 702 So.2d at 1228; citing DeBardeleben v. Tynes, 290 Ala. 263, 276 So.2d 126 (1973); Beatty v. McMillan, 226 Ala. 405, 147 So. 180 (1933); Nichols v. Perryman, 615 So.2d 636 (Ala.Civ.App.1992); Clevelan......