Godfrey v. Vinson

• Decision Date: 24 June 1926
• Docket Number: 3 Div. 768
• Parties: GODFREY v. VINSON.
• Court: Alabama Supreme Court

110 So. 13

215 Ala. 166

GODFREY v. VINSON.

3 Div. 768

Supreme Court of Alabama

June 24, 1926

Rehearing Denied Nov. 4, 1926

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for damages by J.B. Vinson against H.T. Godfrey. From a judgment for plaintiff, defendant appeals. Affirmed.

In reviewing the propriety of directing a verdict for one of the parties, the evidence of the adverse party must be taken as true, and considered in the light most favorable to him.

The witness Dr. A.H. Montgomery testified that he treated the plaintiff on the occasion of the accident; that plaintiff was "bruised up a good deal and had a fracture at the junction of what is termed the middle and lower part of the femur"; that the leg was placed in "sand bags" and kept there for about five weeks; that there was no union and an operation was performed, sawing off the bone to make it raw and putting on a steel plate with screws put through to hold the bone in place; that the bone still did not unite, but began to slough; that finally, after treatment, the bone united, "but at an angle that makes his leg crooked and short." The witness further testified that "all during this time" plaintiff "suffered terribly from emaciation, and at one time it looked as if we would have to cut his leg off in order to save his life"; and that plaintiff was confined in the hospital five or six months. The witness further testified:

"As far as the operation of scraping the bone is concerned, we have been doing that ever since, and will have to do it some yet. He has got a bad leg like it is now. It is a permanent injury. It is shorter. He will never have a good leg; never have a perfect leg. It is set somewhat at an angle now. *** I don't think he will ever be able to do hard work on that leg."

These charges were given for plaintiff:

"(a) The court charges the jury that the violations of the city ordinances introduced in evidence would not prevent the plaintiff from recovering of the defendant for simple negligence on the part of defendant as charged in the first count of the complaint unless the jury is reasonably satisfied from the evidence that such violation contributed proximately to the injury complained of and the burden of proof of such fact rested on defendant to so reasonably satisfy the jury.

"(b) The court charges the jury that the violation of the city ordinances introduced in evidence by the defendant is not a defense to plaintiff's claim as set forth in the second count of the complaint."

There was verdict for plaintiff for $9,000 and judgment accordingly.

Rushton Crenshaw & Rushton, of Montgomery, for appellant.

Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

BOULDIN J.

This was an action in damages for personal injuries arising out of a collision between an automobile owned and driven by defendant, and a bicycle ridden by plaintiff, a police officer of the city of Montgomery. The collison occurred at the intersection of Montgomery and Wilkerson streets in this city. The case was tried on count 1 for simple negligence, count 2 for wanton injury, plea of the general issue, and plea of contributory negligence to first count.

Under present statute a bill of exceptions will not be stricken or disregarded by the court ex mero motu because not "presented" or "signed" within the time required by law, but only on motion to strike duly made and submitted with the cause. Code, § 6434.

Appellant presents the ruling of the court in submitting to the jury the issue under the wanton count--refusal of the affirmative charge thereon. Wantonness has been so often and so clearly defined that we merely cite a few of the many cases. B.R. & R. Co. v. Bowers, 110 Ala. 328, 20 So. 345; L. & N.R.R. v. Brown, 121 Ala. 221, 25 So. 609; M. & C.R.R. Co. v. Martin, 131 Ala. 269, 30 So. 827; A.G.S.R. Co. v. Burgess, 114 Ala. 587, 22 So. 169; Southern Ry. v. Gantt, 210 Ala. 383, 98 So. 192; Mobile Light Co. v. Gadik, 211 Ala. 582, 100 So. 837; Johnson v. Warrant Warehouse Co., 211 Ala. 165, 99 So. 920; Copeland v. Cen. of Ga. Ry. Co., 213 Ala. 620, 105 So. 810.

In dealing with the affirmative charge refused to defendant, the court must look to the strongest tendencies of the evidence for plaintiff. In this connection we must note that it appears one or more diagrams showing the locus in quo were used in the examination of witnesses. The diagram is not before us, and much testimony is unintelligible without its aid with some indicia of locations, distances, lines of motion, and the like, which were pointed out to the jury but are not available to us. To illustrate, Mrs. Godfrey, wife of defendant, says:

"I can show you on the diagram where the collision took place. We came up; we were coming right up here; and we turned, about right like this way. I saw this man coming right along here, and so did Mr. Godfrey."

Evidence of plaintiff's witnesses is in like condition. In this state of the case we cannot review rulings on the effect of the evidence upon issues to which, the omitted evidence relates. Bates v. L. & N.R.R. Co. (Ala.App.) 106 So. 394; Ala. Terminal R. Co. v. Benns, 189 Ala. 590, 66 So. 589.

There is evidence that defendant was running his car at a speed of about 25 miles per hour at 11 o'clock at night without lights (Code, § 6264), on the left-hand side of the street (Code, § 6266), "cutting the corner," turning into a street to the left without keeping to the right of the crossing (Code, § 6266). Any of these violations of law is negligence. Neither of them, standing alone, would be evidence of wantonness under all conditions, but they tend to show that disregard of the legal safeguards to human life which is rushing scores, even hundreds, to violent and untimely death. Under special conditions of danger, known to defendant, either may tend to support an inference of wantonness. Concurrent disregard of several legal duties has a cumulative effect. There is evidence that at the moment plaintiff and another bicyclist following were coming down Montgomery street in the proper position and entering the intersection of Wilkerson street; that another car was coming in the same direction a short distance behind them;...