Engel v. Davis
| Citation | 256 Ala. 661,57 So.2d 76 |
| Decision Date | 17 January 1952 |
| Docket Number | 6 Div. 319 |
| Parties | ENGEL et al. v. DAVIS. |
| Court | Supreme Court of Alabama |
London & Yancey, Geo. W. Yancey and Jas. E. Clark, Birmingham, for appellants.
Hare & Parsons and F. B. Irwin, Birmingham, for appellee.
This is an appeal from a judgment against William Engel, doing business as City Clothing Company, and James Byers (appellants), in favor of John Edward Davis (appellee), a minor who sues by his father and next friend Theodore E. Davis.
The suit is for damages for personal injuries alleged to have been sustained by the plaintiff, who is a minor seven years of age, when through the alleged negligent operation of an automobile by the defendants, he was run over at or near the intersection of 24th Street and 6th Avenue, North, in the City of Birmingham, on September 7, 1950. Error is predicated on (1) the refusal of the affirmative charge for the defendants, (2) the refusal of the affirmative charge for the defendant Engel, (3) the rulings on the evidence and (4) the action of the court in overruling the motion for a new trial.
I. The defendants claim that no case of negligence was made out by the plaintiff. The defendant Byers, agent of the defendant Engel, travelling north on 24th Street struck the plaintiff, a pedestrian going east across 24th Street at the intersection of 6th Avenue, North, and according to tendencies of the evidence, knocked him 48 feet to the northeast corner of the intersection inflicting the alleged injuries. A public school is located on the southwest corner of the intersection, a playground on the northeast corner and a Federal Housing Office building on the northwest corner. The intersection is controlled by a traffic light which was operating at the time of the accident.
Mrs. Abarado confirmed the testimony of her mother that they started from the northeast corner on the green light across 24th Street to the northwest corner at the same time the boy started from the southwest corner to the southeast corner and that the boy was walking on the green light. When about one-half way across 24th Street, Mrs. Abarado saw the boy likewise one-half way across 24th Street headed for the southeast corner. She testified he was 'just walking about like the same pace I was walking.' When Mrs. Abarado was about a foot and a half upon the curb, she heard the thud of the car striking plaintiff and turned and saw him skidding across the street to the northeast corner. Byers admitted that when he struck the boy, the boy was about 2 feet north of the cross walk from the southwest corner to the southeast corner. Mrs. Abarado testified that when she looked the car of Byers was then standing parked over on the northeast corner, a distance of about 50 feet from the point of the collision. Mrs. Davis testified that the boy had gotten out of school when the first and second grade children got out at 11 o'clock and Byers testified that he knew the school was there.
Byers admitted that his speed could have been as high as 20 miles per hour. Under § 1239, subsection 2 of the Birmingham City Code there is a speed limit of 15 miles an hour when passing a school while children are going to or leaving school during opening and closing hours. The boy is a minor seven years of age. No contributory negligence is involved. Mobile Light & R. Co. v. Nicholas, 232 Ala. 213, 167 So. 298.
But there are other considerations. Byers admitted that 'he wasn't running, that he hit him either in the cross walk or within two feet of the cross walk.' He testified, 'I didn't see the boy until he was right in front of the car.' It was raining and misting. The windows of his car were up and his vision was obscured at the left. The windshield wipers, according to Byers, cleared a little space in front of him and so his vision was only in front of him. His vision was obscured in the direction from which school children would approach. He never reduced his speed. The fact that his view was obstructed, does not excuse an inadequate lookout, but on the contrary imposes added duty in that regard. Mobile Light & R. Co. v. Nicholas, supra. Furthermore under tendencies of the evidence, the plaintiff started across the intersection on the green light. It was accordingly the duty of the motorist, assuming this to be true, to wait for the intersection to clear, although the light may have changed to green for the motorist. Duke v. Gaines, 224 Ala. 519, 140 So. 600. There was no error in refusing the affirmative charge requested by the defendants on the theory that there was no evidence of negligence.
II. The court refused the affirmative charge requested by the defendant William Engel. There is some evidence tending to show that the relationship between James Byers and William Engel was that of independent contractor, but during the progress of the trial counsel for the defendants stated that, The distinction between the relationship of independent contractor and that of master and servant has often been stated and needs no restatement here. Greenwald v. Russell, 233 Ala. 502, 172 So. 895.
William Engel owns and operates the City Clothing Company and on September 7, 1950, the day of the accident, James Byers was employed by him as a salesman and collector. As part of the employment it was necessary for Byers to use a car in furtherance of his master's business. To this end Byers continuously and regularly used his own car with the knowledge and consent of Engel. It is settled that '* * * 'If an employee with the knowledge and consent of the employer repeatedly uses an automobile, not owned by the employer, in the latter's business, the employer will be held to have impliedly authorized its use and to be liable for negligence in...
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Andazola v. Logan's Roadhouse, Inc.
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