Dowdell v. Beasley, 3 Div. 323 [*]
Court | Alabama Court of Appeals |
Writing for the Court | BROWN, P.J. |
Citation | 82 So. 40,17 Ala.App. 100 |
Docket Number | 3 Div. 323 [*] |
Decision Date | 22 April 1919 |
Parties | DOWDELL et al. v. BEASLEY. |
82 So. 40
17 Ala.App. 100
DOWDELL et al.
v.
BEASLEY.
3 Div. 323 [*]
Court of Appeals of Alabama
April 22, 1919
Rehearing Denied May 6, 1919
Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.
Action by Wilbur F. Beasley against James S. Dowdell and another for damages for injuries sustained in a collision with an automobile of the defendants. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
The following charges were refused to the defendant:
(6) If you believe from the evidence that Mr. Beasley was operating the motorcycle at a rate of speed in excess of 10 miles an hour at the intersection of Mobile and Mildred streets, then I charge you that as a matter of law the operation of said motorcycle at such speed was negligence on his part
(7) If you believe from the evidence that Mr. Beasley was operating the motorcycle at a rate of speed in excess of 10 miles an hour at the intersection of Mobile and Mildred streets, then I charge you that as a matter of law such operation was negligent, and if you believe from the evidence that such negligence on Mr. Beasley's part contributed proximately to his injuries, then you cannot find for the plaintiff under the first count of the complaint
(8) I charge you that under the evidence in this case Mr. Beasley was negligent as a matter of law in operating the motorcycle at a rate of speed in excess of 10 miles an hour at the intersection of Mobile and Mildred streets, and if you believe from the evidence that such negligence contributed proximately even in the remotest degree to his injuries, you cannot find for the plaintiff under the third count of the complaint.
(13) If you believe the motorcycle was being operated at a speed in excess of 10 miles an hour at the time of the collision, you cannot find for the plaintiff under the first or second counts of the complaint.
Rushton, Williams & Crenshaw, of Montgomery, for appellants.
Goodwyn & McIntyre, of Montgomery, for appellee.
BROWN, P.J.
The plaintiff's injuries, made the basis of this action, resulted from the collision of the defendant's automobile and the plaintiff's motorcycle at the intersection of Mobile and Mildred streets in the city of Montgomery. The evidence shows without dispute that the automobile was at the time in charge of and being operated by the defendant's regular chauffeur, Arthur Baldwin, and tends to show that he was guilty of negligence which proximately caused the collision. There can be no question as to the logic of the rule that--
"Where a servant, who is employed for the special purpose of operating an automobile for the master, and is found operating it in the usual manner such machines are operated, the presumption naturally arises that he is running the machine in the master's service. If he is not so running it, this fact is peculiarly within the knowledge of the master, and the burden is on him to overthrow this presumption by evidence which the law presumes he is in possession [82 So. 41] [17 Ala.App. 101]...
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