Griffin Lumber Co. v. Harper

• Decision Date: 07 March 1946
• Docket Number: 6 Div. 381.
• Citation: 25 So.2d 505,247 Ala. 616
• Parties: GRIFFIN LUMBER CO. et al. v. HARPER.
• Court: Alabama Supreme Court

25 So.2d 505

247 Ala. 616

GRIFFIN LUMBER CO. et al. v. HARPER.

6 Div. 381.

Supreme Court of Alabama

March 7, 1946

Rehearing Denied April 18, 1946.

London & Yancey, of Birmingham, for appellants.

Ling & Bains, of Bessemer, for appellee.

LAWSON, Justice.

This is an action by Mrs. Myrtle Vines Harper, who sues as mother of Harvey Elwood Vines, Jr., deceased, her minor son, under the homicide statute, § 119, Title 7, Code of 1940, against Griffin Lumber Company, a partnership composed of O. A Griffin and E. J. Staub, and against Griffin and Staub individually.

The case was submitted to the jury on plaintiff's complaint consisting of one count charging that the death of her minor son was caused by a wanton wrong of an agent, servant or employee of defendants, while acting within the line and scope of his employment in the operation of a truck belonging to defendants. Defendants interposed the plea of the general issue. There were verdict and judgment for the plaintiff fixing the damages at $1,250. From this judgment defendants appeal.

Defendants seek reversal of this case on the sole ground that the trial court erred in refusing to give the affirmative charge for the several defendants, as requested by them in writing. Hence the only question presented for our consideration is whether the evidence is sufficient to support the charge that the death of plaintiff's minor son was proximately caused by the wanton misconduct of defendants' truck driver.

Wantonness is the 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 can 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. Duke v. Gaines, 224 Ala. 519, 140 So. 600; First National Bank of Dothan v. Sanders, 227 Ala. 313, 149 So. 848.

Plaintiff's minor son and defendants' truck driver, J. B. Nickless were killed when the truck in which they were riding ran off a public highway into a ditch at a point approximately six miles south of Bessemer, Alabama, on the Morgan-Genery Gap Road, so-called. Plaintiff's decedent was riding as a guest in the truck which was owned by defendants and which at the time of the accident was travelling in a general northerly direction en route to defendants' mill in Bessemer with a load of green pine logs weighing approximately seven or eight tons. The accident occurred at about 2 o'clock in the afternoon of the 30th day of July, 1943. The surface of the road was made of chert and was dry at the time of the accident. Defendants' truck driver was shown to have been familiar with the road. There were no eyewitnesses. The record discloses that just prior to the accident the truck had descended a long hill, the top of which was approximately 1683 feet from the point where the accident occurred. There is a down grade of five per cent (a drop of five feet for every hundred feet) for a distance of 1300 feet, then the down grade decreases to three per cent for a distance of 200 feet at which point begins a two per cent up grade. One witness for plaintiff, a civil engineer, stated that the hill was not steep, while another witness for plaintiff described it as being fairly steep. There is a curve of seven degrees to the left beginning at a point where the up grade commences, which is 183 feet from the point where the truck hit a culvert on the right side of the road. The curve was described by the civil engineer who testified for plaintiff as being a gradual, regular curve. The surface of the road at the culvert is shown to be about 15 feet above the bottom of the ditch into which the truck fell. The south end of the culvert wall, which was constructed of stone and concrete, was badly damaged and the north wing of the culvert was damaged to some extent. The latter extended from the north end of the culvert wall at an angle of about forty-two degrees. The distance from the damaged area of the south end of the culvert wall to the damaged portion of the north wing was fixed at 22 1/2 feet by one witness for plaintiff and at 27 feet by another. The truck came to rest just beyond this north wing of the culvert and was found to be burning by those who reached the scene of the accident soon after it occurred. It was completely destroyed. There were tracks between the travelled part of the chert road to the damaged portion of the culvert wall. There was nothing in or about the tracks to indicate that brakes had been applied or that the truck had been suddenly turned either to the right or the left. There was no evidence of skidding. The tracks led 'fairly' straight from that part of the road normally travelled by northbound traffic to the damaged part of the culvert wall. There is no evidence as to the length of such tracks.

Evidence relating to the speed of the truck is limited to the testimony of a witness who saw a logging truck going in the direction of the scene of the accident a short time before it occurred, and of a highway patrolman who testified as an expert and who was permitted to express an opinion as to the speed of the truck at the time it hit the culvert wall. Defendants objected strenuously to the introduction of such testimony and excepted to the adverse rulings of the trial court, but no error is assigned in connection therewith. Hence, the question as to whether such testimony was properly admitted is not before us.

Mrs. Lorraine Stevenson, a witness for the plaintiff, testified on direct examination that she lived about one-half mile from the place where the accident occurred; that her home is on the other side of the hill from that which the truck descended just prior to the accident; that she remembered when the accident happened and that just a few minutes prior thereto she saw a lumber truck 'going rather fast' in the direction of the culvert (the scene of the accident); that she could not drive an automobile and did not ride in them often but road in busses 'once in a while.' On cross-examination this witness testified that she was in her kitchen at the time she saw the truck and that she 'just glanced up at it'; that she saw it for about a distance of 50 feet and that it was going fast.

Highway Patrolman Young reached the scene of the accident within a short time after it happened. He testified for the plaintiff, describing the place where the accident occurred, the condition of the truck, the damage to the culvert, and the nature and character of car tracks which he observed. On direct examination he was asked the following question: 'Assuming, Mr. Young, that the truck you saw at the bottom of the fill was the truck that made the tracks you talked about, that hit the culvert and damaged the wing of the culvert, as you described it to the jury, and was on the ground below the culvert as you described, then what in your judgment, based on your experience as a highway patrolman and having experience for over a period of five years, what in your opinion would have been the speed of that truck.' In answer thereto he stated, 'About sixty miles an hour.' On cross-examination this witness testified that the hill which the truck descended just prior to the accident was fairly steep and was over a quarter of a mile long; that it was long enough and steep enough to cause a truck to reach a speed of 60 miles an hour by the time it reached the bottom of the hill if it was out of control and without brackes and came over the hill at a speed of from 20 to 25 miles an hour; that a heavily loaded truck without brakes would probably attain a speed of about 45 miles an hour by the time it reached the bottom of the hill if it started down the hill from a 'stop position'; that the tracks which he observed leading from the regularly travelled part of the road to the culvert wall were straight and were of such a nature as not to give any indication that an effort had been made to make the turn; that he did not make an examination of the truck to determine whether or not the 'steering-wheel and apparatus' had locked inasmuch as the entire front-end assembly had been severed from the truck; that in driving a truck at a speed of as much as 35 miles an hour around a curve on a loose gravel road there is a certain amount of sliding; that he had no knowledge of the speed which this truck was making at various points as it descended the hill.

The only witness called by the defendant was a Mr. Scott, who was in charge of the upkeep of defendants' truck at the time of the accident. He testified that he had overhauled the truck involved in the accident about a week prior thereto and that the brakes were in good shape; that in so far as he knew the truck was in good shape at the time of the accident; that the foot brakes were hydraulic and the emergency hand brake operated separately from the foot brakes; that a casualty may happen to hydraulic brakes suddenly, without any notice or warning to the driver; that emergency brakes sometime stick that the steering gear of the truck was 'made up of ball bearings' and that if one of the bearings chipped or cracked the...