Harbin v. Moore

• Decision Date: 03 June 1937
• Docket Number: 8 Div. 775
• Citation: 234 Ala. 266,175 So. 264
• Parties: HARBIN v. MOORE et al.
• Court: Alabama Supreme Court

175 So. 264

234 Ala. 266

HARBIN v. MOORE et al.

8 Div. 775

Supreme Court of Alabama

June 3, 1937

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Action for damages by Maggie Bell Harbin, as administratrix of the estate of John Newton Harbin, deceased, against A.L. Moore John Jackson, and Lumbermen's Mutual Casualty Company. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

Watts &amp White, Wm. H. Blanton, and John R. Thomas, Jr., all of Huntsville, for appellant.

Lanier Price & Shaver and Griffin & Ford, all of Huntsville, for appellees.

GARDNER Justice.

In this action the trial court gave the affirmative charge for defendants upon the theory no actionable negligence had been made to appear, and this is the question of prime importance on this appeal.

That defendant Jackson was, on the occasion in question, operating on the public highway a truck and trailer for defendant Moore, and within the line and scope of his authority, is without controversy.

Two questions are presented: First, was the proof sufficient for submission to the jury that it was defendants' truck operated by Jackson that struck and killed plaintiff's intestate; and, second, if this is answered in the affirmative, was there proof which sufficed for a reasonable inference by the jury of Jackson's negligence in the premises? The statement of the trial judge indicates his ruling was based upon this latter theory as to a failure of proof of negligence, and not upon an insufficiency of proof as to the former question. These two questions are properly combined in the matter of discussion of the facts. And as to the applicable principle of law no controversy arises.

It is of course well recognized that in no case is negligence assumed from the mere fact of an injury, and that the scintilla doctrine prevailing in this state does not conflict with the well-known rule that a conclusion as to liability that rests upon speculation or mere conjecture is not the proper basis for a verdict.

As to this latter rule, in the recent case of Georgia Power Co. v. Edmunds, 233 Ala. 273, 171 So. 256, 258, approvingly quoted from Southern R. Co. v. Dickson, 211 Ala. 481, 100 So. 665, is the following language here pertinent:

" 'Proof which goes no further than to show an injury could have occurred in an alleged way does not warrant the conclusion that it did so occur, where from the same proof the injury can with equal probability be attributed to some other cause.'

"But a nice discrimination must be exercised in the application of this principle. As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only. On the other hand, if there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence."

Many of our cases have in varying language expressed the same thought. Southern R. Co. v. Miller, 226 Ala. 366, 147 So. 149; Mobile & Ohio R. Co. v. Hedgecoth, 215 Ala. 291, 110 So. 44; Alabama Power Co. v. Bryant, 226 Ala. 251, 146 So. 602; City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; Carraway v. Smith, 218 Ala. 412, 118 So. 758; Bromley v. Birmingham Mineral R. Co., 95 Ala. 397, 11 So. 341; Cooper v. Agee, 222 Ala. 334, 132 So. 173; Brown Funeral Homes & Ins. Co. v. Baugh, 226 Ala. 661, 148 So. 154; Koger v. Roden Coal Co., 197 Ala. 473, 73 So. 33.

Each case turns upon its own peculiar facts, and other cases are helpful only by way of analogy. Of the authorities above noted, perhaps that of Cooper v. Agee, to which brief reference will hereinafter be made, is more nearly in point.

As to the facts we need indulge in no detail discussion. Plaintiff's intestate on the night of May 4, 1935, was found in a dying condition by passersby on the highway about eight miles from Huntsville, lying beside the road, his feet just off the road, hanging over the curb, in the ditch.

Defendant Moore's truck was some twenty or thirty feet beyond, and his driver, Jackson, was present, with evidence tending to show deceased was first in the ditch, and had been pulled out by Jackson to the side of the road. The truck is referred to as a "dual wheel trailer" with sideboards about four feet high from the bed of the truck, and extending out to the edge of the fenders or a little beyond. Deceased had been struck on the back of the head. The surface of the road (thirty-five feet in width) was gravel, except about eighteen or twenty inches along the edge of the ditch. The ditch on the right of the road was two feet wide and fifteen or eighteen inches deep. The imprint of the body of deceased was in the ditch, also blood, brains, and hair. The hair was gray, and resembled that of deceased.

And from the tracks, identified as those made by deceased, the jury could reasonably infer from the proof that deceased, at the time he was struck from the rear, was walking just off the gravel part of the road and near the ditch. It had rained the night before, and some of the witnesses testified as to the location of dual wheel tracks discovered on the surface of the road, which at that time was wet. Where was located the blood in the ditch and along its bank, these dual wheel truck tracks were about eighteen inches from the edge of the ditch, and these tracks continued on from this place. Two places indicated a slide of the wheels by application of brakes just eight or ten feet from the place of the accident, and again some twelve or fifteen feet further and beyond. Defendant's truck was traveling away from Huntsville, and deceased was walking in the same direction; that is, such may be reasonably inferred from the proof. These dual wheel truck tracks were examined some thirty or forty feet back towards Huntsville, with no indication of a sliding of the wheels before the point of the accident. They started about two feet from the edge of the ditch, and varied little up to the place of the accident where the wheels made a short curve, and the witness states there were no other tracks along the right-hand side of the road next to the ditch, other than those mentioned. And these wheel tracks for a distance of ten steps back were about eighteen inches from the edge of the ditch and off the gravel.

There was a hole on the back of the head of deceased "a little longer cross ways than *** up and down," and on the "left side of the center of the head," as testified to by one witness, though conflicting with the statement of another witness in this particular.

The tracks of a human being along the side of the road and near the ditch came closer to the edge as they approached the scene of the accident, and the last step made the dirt fall off in the ditch and crumble.

Defendant Jackson, answering plaintiff's interrogatories, testified as to his operation of the truck on this night going away from Huntsville, and that he did see deceased at one time within a few feet of the truck, but does not know the truck...