Decatur Transit v. Jennings, 8 Div. 514

• Decision Date: 02 March 1950
• Docket Number: 8 Div. 514
• Citation: 45 So.2d 13,253 Ala. 322
• Parties: DECATUR TRANSIT v. JENNINGS.
• Court: Alabama Supreme Court

Page 13

45 So.2d 13

253 Ala. 322

DECATUR TRANSIT v. JENNINGS.

8 Div. 514.

Supreme Court of Alabama.

March 2, 1950.

Eyster & Eyster, of Decatur, for appellant.

Sherman B. Powell, of Decatur, for appellee.

FOSTER, Justice.

Appellee obtained a judgment in the circuit court against appellant, from which this appeal is taken.

The only questions argued by appellant's counsel are whether he was entitled to the affirmative charge or, if not, whether his motion for a new trial should have been granted because the verdict was contrary to the great weight of the evidence.

Appellee was injured in a collision which occurred shortly after midnight as she was traveling south in a taxicab on Ferry Street in Decatur. Appellant was the owner of the taxicab, which was then being operated by his agent and appellee was a passenger. She was a nurse in a clinic and was on her way home, having been just released from duty. There were four other passengers in the taxicab. As Ferry Street extends south it is crossed by Cain Street at a prominent corner in front of the courthouse. The collision occurred between the taxicab and a Pontiac which was traveling from west to east across Ferry Street. Appellee was on the right side of the front seat. There was a conflict as to which car struck the other. But the impact caused them both to skid across Ferry Street and turn so as to face north and along the curb on the east side of the street. There was also conflict as to the rate of speed each car was traveling. It was misting rain and the street was wet. Ferry Street is a through street or boulevard and, on Cain Street along which the Pontiac was traveling, there was a 'stop' sign on the right before entering Ferry Street, but not a 'stop' sign on Ferry Street entering Cain Street.

Appellee testified the taxicab was traveling down grade on Ferry Street at a rate of fifty to fifty-five miles an hour (this was corroborated by Sapp, the driver of the Pontiac); that the Pontiac was traveling slowly at about twenty miles an hour and had stopped at the 'stop' sign and that the Pontiac struck the cab at the door on her side. She was badly injured.

The Pontiac was occupied by two men, one of whom (Sapp) was driving: the other man (Hill who owned the Pontiac) was sitting by him. They both testified that the Pontiac was stopped at the sign; that they looked for approaching cars on Ferry Street and seeing none went across at a slow speed of about twenty miles an hour, and the taxicab came down Ferry Street traveling rapidly, which Sapp testified was about fifty miles an hour and struck the Pontiac and caused the damage. That they did not see the taxicab until it was right on them.

The driver of the taxicab and three of the other passengers testified that the taxicab was traveling at about twenty to twenty-five miles an hour and that the Pontiac ran upon the taxicab without stopping at the sign and at about forty-five to fifty miles an hour and struck the taxicab, knocked it around and both skidded to the east side of and down Ferry Street.

There is no complaint made as to the amount of the verdict, but only that the negligence of the driver of the Pontiac was the sole proximate cause of the collision without negligence on the part of the driver of the taxicab proximately contributing to it.

Of course it is recognized that if negligence of the driver of the taxicab proximately contributed to the accident appellant would be liable, although negligence on the part of the driver of the Pontiac also proximately contributed to it.--Chambers v. Cox, 222 Ala. 1, 130 So. 416; Morgan-Hill Paving Co. v. Fonville, 218 Ala. 566(17), 119 So. 610. The court in substance so charged the jury, with no contrary contention now being made.

But it is insisted that the physical facts show that the version of the driver of the Pontiac cannot be true. This because if he stopped near the 'stop' sign he could see up Ferry Street to the top of the hill, some two hundred and sixty-four feet, with no obstructions, and if he had looked he would have seen the headlights of the taxicab coming, which he says he did not see though he looked. That if the taxicab had been traveling at fifty miles an hour and had hit the Pontiac, the impact would have turned the latter around toward the west side of Ferry Street and not the east side.

We think the jury could very well find as more consistent with the result that both were traveling rapidly. If the taxicab was traveling slowly and the Pontiac rapidly, the tendency would be to shove the taxicab around more nearly in the...