Graves v. Wildsmith, Nos. 6

CourtSupreme Court of Alabama
Writing for the CourtLAWSON; LIVINGSTON
Citation278 Ala. 228,177 So.2d 448
Docket NumberNos. 6,6 Div. 91
Decision Date08 April 1965
PartiesDanny GRAVES, pro ami v. Lula M. WILDSMITH. Marvin GRAVES v. Lula M. WILDSMITH. Div. 91,-A.

Page 448

177 So.2d 448
278 Ala. 228
Danny GRAVES, pro ami
v.
Lula M. WILDSMITH.
Marvin GRAVES
v.
Lula M. WILDSMITH.
Nos. 6 Div. 91, 6 Div. 91-A.
Supreme Court of Alabama.
April 8, 1965.
Rehearing Denied Aug. 12, 1965.

[278 Ala. 229]

Page 450

Marvin Cherner and Louis Fleisher, Birmingham, for appellants.

[278 Ala. 230] Henry E. Simpson, Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.

LAWSON, Justice.

Danny Graves, a minor, by his next friend and father, Marvin Graves, brought suit against Mrs. Lula M. Wildsmith to recover damages for personal injuries. There were two counts, one for negligence and the other based on wanton misconduct.

Marvin Graves, the father, brought suit against the same defendant seeking to recover for expenses incurred in the treatment of his son's injuries and for loss of his son's society and services. The complaint contained one count based on negligence and one count charging wanton misconduct.

The defendant pleaded the general issue in short by consent in the usual form in each case.

The two cases were consolidated and tried together in the Circuit Court of Jefferson County under the statute which authorizes circuit courts in counties of 500,000 or more population to consolidate pending causes of like nature. § 221, Title 7, Code 1940, as amended by Act 230, approved September 15, 1961, Acts of Alabama 1961, Sp.Sess., Vol. II, p. 2241.

Trial of the two cases resulted in separate verdicts for the defendant. Motion for new trial was filed by each of the plaintiffs. Those motions were denied.

The plaintiffs have taken separate appeals to this court but the appeals were submitted here on one transcript.

The trial court refused in each case to give at the defendant's request affirmative instructions to find for the defendant on the wanton counts. And in the oral charge the trial court specifically instructed the jury as to the theory of liability included in the wanton counts.

Yet, at the request of the defendant the trial court gave a written instruction in each case in the following language:

'The court charges you that if you are reasonably satisfied from the evidence that Lula M. Wildsmith was free of negligence as charged against here in the complaint, then and in such event your verdict should be in favor of the defendant.'

It is error to give such a charge where there is a wanton count supported by the evidence. Sims v. Birmingham Electric Co., 238 Ala. 83, 189 So. 547, and cases cited; Buchanan v. Vaughn, 260 Ala. 482, 71 So.2d 56.

[278 Ala. 231] The appellee, defendant below, argues that the giving of those charges was error without injury for the reason that there was no evidence to support the wanton count, citing Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516.

In considering the question as to whether there was evidence from which the jury could find for the plaintiffs on the wanton counts, we must consider the evidence most favorable to the plaintiffs. Buchanan v. Vaughn, supra, and cases cited.

Stating the evidence in its most favorable aspect for the plaintiffs, it is: Plaintiff Danny Graves, a minor of the age of fifteen years, was driving a motorbike which belonged to the mother of his friend, Randy Parker, between 4:30 and 4:50 o'clock on the afternoon of December 3, 1960. He was proceeding at a speed of between twenty-five and thirty miles an hour in a southerly direction on Arkadelphia Road, a part of Highway 78 West, a thirty-footwide paved street, when he first saw the automobile being driven by the defendant,

Page 451

Mrs. Wildsmith, proceeding southwardly ahead of him on Arkadelphia Road. Randy Parker was riding behind Danny on the 'buddy' seat of the motorbike. Mrs. Wildsmith had entered Arkadelphia Road from Ninth Avenue. She came from the east and turned left on Arkadelphia Road and proceeding in a southerly direction at a speed of between twenty and twenty-five miles an hour. When she entered Arkadelphia Road, Mrs. Wildsmith did not see the motorbike as it was moving southward up a hill to her right. As she proceeded southwardly on Arkadelphia Road, Mrs. Wildsmith was not conscious of the fact that the motorbike was following her. Both vehicles were moving in the west lane of the two-lane street, that is, in the lane designated for southbound traffic. As the two vehicles moved down a hill the motorbike was from twenty to twenty-five feet behind the automobile. The motorbike was nearer the west curb than the automobile. As Mrs. Wildsmith approached the intersection of Arkadelphia Road and 8th Terrace, West, she veered her automobile several feet to the left near the center line and then turned to the right to enter 8th Terrace, West. Before making the turn she gave no hand signal or other indication that she was going to turn. She did not look in her rearview mirror. When Mrs. Wildsmith veered her automobile to the left the brake lights on her automobile came on. When Danny Graves saw the brake lights come on, he put a little pressure on the brakes of the motorbike, but when he saw the automobile turn to the right he put the brakes on with full force. At that time the motorbike was ten or fifteen feet behind the automobile and was moving in a straight line at a speed of...

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32 practice notes
  • Boim v. Holy Land Foundation for Relief and Dev., No. 05-1815.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 3, 2008
    ...and conscious that from the doing of such act or omission of such duty injury will likely or probably result." Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448, 451 (1965); see also Landers v. School District No. 203, O'Fallon, 66 Ill.App.3d 78, 22 Ill.Dec. 837, 383 N.E.2d 645 (1978). "[I]n......
  • Foster v. Alabama Power Co.
    • United States
    • Supreme Court of Alabama
    • February 20, 1981
    ...persons, though not seen, are likely to be in a position of danger * * *. Lewis v. Zell, 279 Ala. 33, 181 So.2d 101; Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448. Wantonness may arise after discovery of actual peril, by conscious failure to use preventive means at hand. Godfrey v. Vinso......
  • Browning v. Shackelford, No. 44255
    • United States
    • United States State Supreme Court of Mississippi
    • March 13, 1967
    ...the Alabama Supreme Court, citing Atlantic Coast Line Railroad Co. v. Brackin, 248 Ala. 459, 28 So.2d 193 (1946), and Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448 (1965). In the latter case we find these Wantonness has been defined as the conscious doing of some act or omission of some ......
  • Britton v. Doehring, 8 Div. 317
    • United States
    • Supreme Court of Alabama
    • September 17, 1970
    ...and conscious that from the doing of such act or omission of such duty injury will likely or probably result. * * *' Graves v. Wildsmith, 278 Ala. 228, 231, 177 So.2d 448, 451 (1965). It has also been said that knowledge need not be shown by direct proof but may be shown by adducing facts f......
  • Request a trial to view additional results
32 cases
  • Boim v. Holy Land Foundation for Relief and Dev., No. 05-1815.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 3, 2008
    ...and conscious that from the doing of such act or omission of such duty injury will likely or probably result." Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448, 451 (1965); see also Landers v. School District No. 203, O'Fallon, 66 Ill.App.3d 78, 22 Ill.Dec. 837, 383 N.E.2d 645 (1978). "[I]n......
  • Foster v. Alabama Power Co.
    • United States
    • Supreme Court of Alabama
    • February 20, 1981
    ...persons, though not seen, are likely to be in a position of danger * * *. Lewis v. Zell, 279 Ala. 33, 181 So.2d 101; Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448. Wantonness may arise after discovery of actual peril, by conscious failure to use preventive means at hand. Godfrey v. Vinso......
  • Browning v. Shackelford, No. 44255
    • United States
    • United States State Supreme Court of Mississippi
    • March 13, 1967
    ...the Alabama Supreme Court, citing Atlantic Coast Line Railroad Co. v. Brackin, 248 Ala. 459, 28 So.2d 193 (1946), and Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448 (1965). In the latter case we find these Wantonness has been defined as the conscious doing of some act or omission of some ......
  • Britton v. Doehring, 8 Div. 317
    • United States
    • Supreme Court of Alabama
    • September 17, 1970
    ...and conscious that from the doing of such act or omission of such duty injury will likely or probably result. * * *' Graves v. Wildsmith, 278 Ala. 228, 231, 177 So.2d 448, 451 (1965). It has also been said that knowledge need not be shown by direct proof but may be shown by adducing facts f......
  • Request a trial to view additional results

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