Griffith Freight Lines v. Benson, 6 Div. 126

• Decision Date: 14 October 1937
• Docket Number: 6 Div. 126
• Citation: 176 So. 370,234 Ala. 613
• Parties: GRIFFITH FREIGHT LINES v. BENSON.
• Court: Alabama Supreme Court

176 So. 370

234 Ala. 613

GRIFFITH FREIGHT LINES v. BENSON.

6 Div. 126

Supreme Court of Alabama

October 14, 1937

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Action for damages by W.D. Benson against Griffith Freight Lines. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

London & Yancey and Fred G. Koenig, Sr., all of Birmingham, for appellant.

J.J Curtis and Herman Maddox, both of Jasper, for appellee.

BROWN Justice.

This is an action on the case by a truck owner to recover damages for personal injury and property loss resulting from the wrecking of his truck, the plaintiff driving, by running against or into a ditch and embankment at Lynn's Park on the Bankhead Highway, where the highway intersects and crosses the "Cordova and Sipsey Road," also a public highway. The plaintiff at the time was in the act of passing the defendant's truck driven by defendant's agent or servant, G.P. Dial.

The basis of the plaintiff's right of action, stated in different counts of his complaint is that defendant's agent or servant, while acting within the scope of his employment, negligently or wantonly, one or both, crowded plaintiff's truck off the highway.

The pleas were not guilty, and contributory negligence, pleaded in short by consent, with leave to offer evidence of contributory negligence in support of such pleas as if specially pleaded.

Both trucks were proceeding west; the truck of defendant leading and carrying a trailer loaded with baled cotton destined to the warehouse of Anderson-Clayton Company, located on the bank of the Warrior river, and by the side of the Sipsey-Cordova highway, some three or four hundred yards south of the intersection at Lynn's Park. The time was about 11 o'clock, a.m., December 20, 1935, and the weather was cold and clear. The defendant's truck including the trailer, was 32 feet in length, and with the load weighed upward of seven and one-half tons. The view of the driver of the cotton truck, to the rear, was somewhat obscured by the load, but he testified that the truck was equipped with a mirror attached on the side of the cab enabling him to see from his seat in the cab just around the corner of the load of cotton. The highway was slightly up grade, and the cotton truck, according to varying phases of the testimony, was moving at the rate of from 5 to 15 miles per hour. The driver testified that he went into low gear immediately before reaching the intersection preparatory to making the turn.

The plaintiff's truck was running light, without load, and came in behind the defendant's truck some distance from the river bridge, according to plaintiff's testimony, a quarter of a mile, and followed close behind, until shortly before defendant's truck reached the intersection; that he then sounded his horn to indicate his desire to pass, cut to the left side of the highway and speeded up; that defendant's driver turned the cotton truck to the left at the intersection in front of plaintiff's truck, and plaintiff, in his effort to avoid a collision, cut further to the left, and ran his truck across the intersection into the embankment and ditch at the southwest corner of the intersection. The trucks did not come in collision with each other. The testimony offered by plaintiff tended to show that the head of defendant's truck passed in front of his truck, and to avoid the collision he cut further to the left and applied his brake.

The defendant's evidence was to the effect that the driver of the defendant's truck, before attempting to turn on the intersection, made observation in the mirror, and then thus detailed the facts incident to the occurrence: "I did not hear any horn sounded by an automobile at any time before reaching the crossing our (or) at the time I reached the crossing. When I...