Duke v. Gaines

Decision Date10 March 1932
Docket Number6 Div. 5.
Citation140 So. 600,224 Ala. 519
PartiesDUKE v. GAINES.
CourtAlabama Supreme Court

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.


Nesbit & Sadler, of Birmingham, for appellant.

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


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 were passing the third car, Mr. Marbury, according to his testimony, discovered defendant's car coming around to the left or north of this standing car at a rate of 20 to 25 miles per hour. He stepped back and avoided a collision, but Mr. Gaines to his right came in contact with the moving car. He struck the car on the side, Mr. Marbury estimates about even with the windshield, another witness about the mud guard or fender over the front wheel.

Defendant testified he came to a stop to the rear of the standing car, and when the amber light came, he rounded this car, entered the pedestrian zone on the green light, was moving at about the speed of a brisk walk, when, suddenly, the man ran into his car on the right side. A few moments later Mr. Duke carried Mr. Gaines to the hospital in his car.

Further evidence tended to show that entering such intersection at the speed named by Mr. Marbury was in violation of a city ordinance; that in "whipping" around the car defendant's automobile was beyond the center of the avenue, in the zone of west-bound traffic, also in violation of an ordinance; that while in this position defendant discovered a street car...

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