Ditsch v. Baggett Transp. Co., 6 Div. 252

• Decision Date: 23 October 1952
• Docket Number: 6 Div. 252
• Citation: 258 Ala. 26,61 So.2d 98
• Parties: DITSCH v. BAGGETT TRANSP. CO., Inc. et al. (two cases). , 253.
• Court: Alabama Supreme Court

Page 98

61 So.2d 98

258 Ala. 26

DITSCH v. BAGGETT TRANSP. CO., Inc. et al. (two cases).

6 Div. 252, 253.

Supreme Court of Alabama.

Oct. 23, 1952.

Jackson, Rives, Pettus & Peterson, Birmingham, for appellant.

Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.

PER CURIAM.

In the early afternoon of August 5, 1948, at a point approximately five miles west of the city of Anniston on U. S. Highway 78, there was a collision between an automobile owned by Miss Patricia Ditsch, which was being driven by her mother, Mrs. Hazel Ditsch, and a truck driven by Ralph Copeland while acting within the line and scope of his employment as an agent, servant or employee of Baggett Transportation Company, Inc. Miss Patricia Ditsch, the owner of the automobile, was not in it at the time of the collision.

Mrs. Hazel Ditsch brought suit in the circuit court of Jefferson County against Baggett Transportation Company and Ralph Copeland to recover damages for personal injuries. Miss Patricia Ditsch also brought suit in the same court against the same defendants to recover for damages to her automobile. The two cases were consolidated and tried together under the statute which authorizes circuit courts in counties of 300,000 or more population to consolidate pending cases of like nature. § 221, Title 7, Code 1940.

The trial resulted in separate verdicts in favor of the defendants. Separate judgments followed the verdicts. Plaintiffs filed their motions for new trial. Such motions being overruled, the plaintiffs separately appealed to this court. The appeals were consolidated and were submitted here on one record, but with separate assignments of error.

The appeal of Mrs. Hazel S. Ditsch is our 6 Div. 252 and that of Miss Patricia S. Ditsch is our 6 Div. 253.

The only error assigned in 6 Div. 252 is as follows:

'1. The Trial Judge (Honorable J. Edgar Bowron) erred in giving to the jury at the request of the defendants the defendants' requested written charge No. 57, reading as follows:

"57. The Court charges you that if you believe the evidence in this case, Mr. Copeland was not exceeding the speed limit as a matter of law.' and in writing thereon the words 'Given, Bowron, Judge'.'

In 6 Div. 253 the only assignment of error reads as follows:

'1. The Trial Judge (Honorable J. Edgar Bowron) erred in overruling appellant's motion for new trial (Tr. pp. 33-36) based upon Ground 7 thereof, reading as follows:

"7. For that the said verdict is not sustained by the great preponderance of the evidence in the case.' (Tr. p. 34.)'

In brief filed here on behalf of the appellants, counsel define the issues presented here as follows:

'There is but one question for decision raised in each of the two cases here on appeal. However, the question in each case is not common in both. In the personal injury case (19542-X in the Court below) wherein Mrs. Hazel Ditsch is here the appellant and Baggett Transportation Company and another, the appellees, there is the single question of whether a written charge requested by the defendants and given by the Court below constitutes error to reverse. In the property damage case (19543-X in the Court below) wherein Miss Patricia Ditsch is here the appellant and Baggett Transportation Company and another, the appellees, the sole question is the correctness vel non of the Court below in overruling the motion for a new trial because of the verdict therein being contrary to the great preponderance of the evidence.'

Although these two cases were tried together on the same evidence, it appears that written charge No. 57 was requested by the defendants only in the case in which Mrs. Hazel S. Ditsch was plaintiff and was not requested or given in the other case; hence the giving of that charge was not assigned as error on the appeal of Miss Patricia S. Ditsch, our 6 Div. 253.

It appears from brief filed on behalf of the appellants that the reason for not assigning as error the action of the trial court in overruling the motion for a new trial in the case wherein Mrs. Hazel S. Ditsch was plaintiff and in making such an assignment in the case wherein Miss Patricia S. Ditsch was plaintiff is that in the suit by Mrs. Hazel S. Ditsch the question of the contributory negligence of the plaintiff was involved, but that no such question was involved in the suit by Miss Patricia S. Ditsch.

We will consider first the appeal of Miss Patricia S. Ditsch, our 6 Div. 253, wherein, as before shown, the only question presented is whether the trial court erred in overruling the ground of her motion for a new trial to the effect that the verdict was not sustained by the great preponderance of the evidence.

For the purposes of this appeal, we will consider the highway on which the parties were traveling as running true east and west. On the north side of the highway approximately five miles west of Anniston is situated Canter's Service Station. The truck which defendant Copeland was driving was moving in an easterly direction toward the freight terminal in Anniston, when it moved from the south lane of the highway across the north lane onto the premises of Canter's Service Station, where the truck was stopped and the driver put water into the radiator. The Ditsch automobile was also moving in an easterly direction from Birmingham toward Anniston. After putting water into the radiator of the truck, Copeland drove from the premises of the service station onto the highway to continue his trip to Anniston. The truck was proceeding toward the south lane of the highway at a speed estimated by the witnesses at from three to twenty-five miles an hour. When Mrs. Ditsch tried to pass on the right of the truck, the left rear fender of the automobile she was driving and the front bumper on the right side of the truck came into contact, and as a result the Ditsch automobile was caused to turn over. The speed at which the Ditsch automobile was traveling was estimated at from forty-five to seventy miles an hour. The evidence as it relates to the position of the truck in the road at the time of the collision is in sharp conflict.

The evidence tends to show that the horn of the Ditsch automobile was sounded as it approached the point of the collision, although the driver of the truck stated that he did not hear it. Pictures of the scene of the accident and the road as it leads to that point were introduced in evidence. The driver of the truck testified that before entering the highway from the premises of the service station he looked back and did not see the Ditsch automobile approaching, but stated that after getting onto the highway and before straightening up his vehicle on the south lane thereof, he was unable to see the roadway to the west because of his trailer.

Verdicts are presumed to be correct and no ground of new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the evidence. Cobb v. Malone, 92 Ala. 630, 9 So. 738. It is recognized by this court that when the presiding judge refuses, as here, to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. Bell...