Duke v. Gaines, 6 Div. 5.

CourtSupreme Court of Alabama
Writing for the CourtBOULDIN, J.
Citation140 So. 600,224 Ala. 519
PartiesDUKE v. GAINES.
Docket Number6 Div. 5.
Decision Date10 March 1932

140 So. 600

224 Ala. 519

DUKE
v.
GAINES.

6 Div. 5.

Supreme Court of Alabama

March 10, 1932


Rehearing Denied April 7, 1932.

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action for wrongful death by Sarah Beall Gaines, as administratrix of the estate of A. A. Gaines, deceased, against W. H. Duke. From a judgment for plaintiff, defendant appeals.

Affirmed. [140 So. 601]

Nesbit & Sadler, of Birmingham, for appellant.

Martin, Thompson & McWhorter and J. C. Blakey, all of Birmingham, for appellee.

BOULDIN, J.

Action under the homicide statute (Code 1923, § 5696) for negligent or wanton conduct causing the death of plaintiff's intestate.

Decedent, A. A. Gaines, came to his death, according to plaintiff's evidence, as the result of personal injury received by coming in collision with an automobile owned and driven by the defendant at a public street crossing.

The first insistence is that defendant was due the affirmative charge on the wanton count.

"Wanton injury" was quite accurately defined by the trial court in these words: "Wantonness is a conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Before a party could be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury." Mobile Electric Co. v. Fritz, 200 Ala. 692, 77 So. 235; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13.

In considering the propriety of the affirmative charge, we review the tendencies of the evidence most favorable to plaintiff, regardless of any view we may have as to the weight of evidence; and must allow such reasonable inferences as the jury were free to draw, not inferences which we may think the more probable.

Plaintiff's evidence tended to show the following:

The accident occurred at the intersection of Eighteenth street and First avenue in the city of Birmingham. Mr. Gaines was going north with Eighteenth street, crossing First avenue in a marked-off zone some twelve feet wide in line with the sidewalk on west side of Eighteenth street.

Mr. Duke was driving east on First avenue.

The time was a little before 8 o'clock in the morning. At this hour automobile traffic along First avenue at this point was heavy; pedestrian traffic not so heavy, but to use the words of defendant, "I knew that that crossing was used very frequently there in the mornings by pedestrians, and knew that on the morning of March 4th," the date of accident.

Traffic movement was regulated by traffic light signals located above the center of the intersection.

By ordinance it was declared: Green light means "safety and go," red light means "danger and stop," and amber light means "caution and clear intersection." By the green and red light signals traffic moved alternately for periods of fourteen seconds each. The amber light was on for five seconds.

First avenue at the intersection is 70 feet in width from curb to curb. A double line of street car tracks is located along the center of the avenue.

Mr. Gaines and a Mr. Marbury entered the intersection on the green light, walking north on the marked-off zone for pedestrians. At that moment east-bound automobiles were lined up three abreast just to the left of this zone. About the time they...

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64 practice notes
  • Commonwealth Life Ins. Co. v. Harmon, 6 Div. 528.
    • United States
    • Alabama Supreme Court
    • March 22, 1934
    ...Ins. Co. v. Barr, 218 Ala. 505, 119 So. 11; Sovereign Camp, Woodmen of the World, v. Hackworth, 200 Ala. 87, 75 So. 463; Duke v. Gaines, 224 Ala. 519, 140 So. 600. Here the evidence of the expert testimony is to the effect that the assured was affected with the fatal malady of which he died......
  • Sims v. Struthers, 3 Div. 760
    • United States
    • Supreme Court of Alabama
    • April 25, 1957
    ...devolves upon the court to determine that the jury is qualified, but that duty ends after the court has so qualified them. Duke v. Gaines, 224 Ala. 519, 140 So. 600; Avery Freight Lines v. Stewart, supra; Leach v. State, 245 Ala. 539, 18 So.2d 289; § 6, Title 30, Code of It is the rule of o......
  • Hamilton v. Browning, 5 Div. 526
    • United States
    • Supreme Court of Alabama
    • March 10, 1952
    ...must allow such reasonable inferences as the jury was free to draw, not inferences which we may think the more probable. Duke v. Gaines, 224 Ala. 519, 140 So. Appellant admitted that he saw the car in which appellee was riding some distance before it got to the intersection. Of course, he d......
  • Cox v. Roberts, 6 Div. 390.
    • United States
    • Supreme Court of Alabama
    • October 17, 1946
    ...International Harvester Co. et al. v. Williams, 222 Ala. 589, 133 So. 270; Harris v. Snider, 223 Ala. 94, 134 So. 807; Duke v. Gaines, 224 Ala. 519, 140 So. 600; Faulkner v. Gilchrist, 225 Ala. 391, 143 So. 803; McCaleb v. Reed, 225 Ala. 564, 144 So. 28; McQueen v. Jones, 226 [248 Ala. 378]......
  • Request a trial to view additional results
64 cases
  • Commonwealth Life Ins. Co. v. Harmon, 6 Div. 528.
    • United States
    • Alabama Supreme Court
    • March 22, 1934
    ...Ins. Co. v. Barr, 218 Ala. 505, 119 So. 11; Sovereign Camp, Woodmen of the World, v. Hackworth, 200 Ala. 87, 75 So. 463; Duke v. Gaines, 224 Ala. 519, 140 So. 600. Here the evidence of the expert testimony is to the effect that the assured was affected with the fatal malady of which he died......
  • Sims v. Struthers, 3 Div. 760
    • United States
    • Supreme Court of Alabama
    • April 25, 1957
    ...devolves upon the court to determine that the jury is qualified, but that duty ends after the court has so qualified them. Duke v. Gaines, 224 Ala. 519, 140 So. 600; Avery Freight Lines v. Stewart, supra; Leach v. State, 245 Ala. 539, 18 So.2d 289; § 6, Title 30, Code of It is the rule of o......
  • Hamilton v. Browning, 5 Div. 526
    • United States
    • Supreme Court of Alabama
    • March 10, 1952
    ...must allow such reasonable inferences as the jury was free to draw, not inferences which we may think the more probable. Duke v. Gaines, 224 Ala. 519, 140 So. Appellant admitted that he saw the car in which appellee was riding some distance before it got to the intersection. Of course, he d......
  • Cox v. Roberts, 6 Div. 390.
    • United States
    • Supreme Court of Alabama
    • October 17, 1946
    ...International Harvester Co. et al. v. Williams, 222 Ala. 589, 133 So. 270; Harris v. Snider, 223 Ala. 94, 134 So. 807; Duke v. Gaines, 224 Ala. 519, 140 So. 600; Faulkner v. Gilchrist, 225 Ala. 391, 143 So. 803; McCaleb v. Reed, 225 Ala. 564, 144 So. 28; McQueen v. Jones, 226 [248 Ala. 378]......
  • Request a trial to view additional results

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