Holley v. Josey

• Citation: 82 So.2d 328,263 Ala. 349
• Decision Date: 14 April 1955
• Docket Number: 4 Div. 779
• Parties: O. G. HOLLEY et al. v. Z. H. JOSEY.
• Court: Alabama Supreme Court

Page 328

82 So.2d 328

263 Ala. 349

O. G. HOLLEY et al. v. Z. H. JOSEY.

4 Div. 779.

Supreme Court of Alabama.

April 14, 1955.

Rehearing Denied Sept. 22, 1955.

Albrittons & Rankin, Andalusia, for appellants.

Prestwood & Prestwood, Andalusia, for appellee.

LIVINGSTON, Chief Justice.

Z. H. Josey filed suit in the Circuit Court of Covington County, Alabama, against O. G. Holley, W. T. Reeves and J. V. Burkett claiming damages for the death of his minor son, Murry Austin Josey. The complaint consisted of two counts: Count 1 for simple negligence, and Count 2 for the willful or wanton misconduct of the defendants. The defendants, O. G. Holley and W. T. Reeves, interposed demurrers to each count of the complaint, which were sustained as to Count 2 of the complaint and overruled as to Count 1. No error is assigned concerning the sufficiency of Count 1 of the complaint. The defendants pleaded in short by consent the general issue with leave, etc. Count 1 of the complaint was submitted to the jury as to all three of the defendants, and resulted in a judgment against all three defendants in the sum of $6,500. Timely motions by defendants Holley and Reeves were overruled by the trial court, and they appealed. Burkett did not appeal, nor did he join in the appeal of Holley and Reeves.

We will set out only so much of the testimony as is necessary to a discussion of the points raised by the Assignments of Error.

Murry Austin Josey was killed on a public highway at about 1:00 a.m. on July 13, 1952.

On the night of July 13, 1952, appellant Holley carried a group of baseball players of the Greenville, Alabama, semi-pro baseball team to a semi-pro baseball tournament at Andalusia, Alabama. After the game, which seems to have been delayed by rain, W. T. Reeves, one of the Greenville players, was driving Mr. Holley's automobile with Mr. Holley seated on the front seat by him, and three Greenville players riding on the rear seat of this automobile as the car left Andalusia to return to Greenville. After the automobile driven by Mr. Reeves passed Red Level the occupants of the automobile driven by him saw another automobile on front of them. Although Mr. Reeves and the parties in his car did not know this fact as they approached the car in front of them, it was owned and being driven by Mr. J. V. Burkett, the other defendant in the court below. The section of the road was hilly, and while Mr. Reeves was driving close behind the car which was driven by Mr. Burkett, both cars passed over the body of Murry Austin Josey. The testimony was to the effect that neither automobile was exceeding the speed limit. Both cars stopped after passing over the body of Murry Austin Josey. Upon examination, Josey was found to still be alive, but died within a few minutes.

Josey was killed about a mile and a quarter to a mile and a half in a northerly direction from Red Level and towards McKenzie. The testimony is to the effect that after passing through Red Level, the Holley car being driven by Reeves was some considerable distance behind the Burkett car, which was not being driven as fast as the Holley car. For the purpose of passing, the Holley car approached to within a short distance of the Burkett car, variously estimated from 20 to 50 feet. As the two cars passed over the crest of a hill in this position, Burkett, according to his testimony, saw in the right lane of the highway in the direction he was driving, what he thought was a paste board box top, or some other object. Burkett testified that he did not have time to stop his car but straddled the object with the wheels of the car. He further testified that he heard a light lick underneath his car as he passed over the object.

Mr. Holley's testimony, and that of the occupants of his car, was to the effect that the first time they saw Josey he came out from under the rear wheels of the Burkett car, and that the Burkett car was bumping over it, and the body was turning counter-clockwise to the direction in which they were going. This testimony was also to the effect that the Holley car straddled the body of Josey, but did not touch it, and the wheels did not run over him. Burkett further testified that the Holley car had blown at him at one or two intervals down the highway, indicating an intention to pass, but the car never passed him.

Officers summoned to the wreck made an examination of the roadway at the point and later made an examination of the underside of the Holley car. They testified that they found hair, blood and threads of cloth under the Holley car. Mr. Brooks, the Assistant State Toxicologist, examined the Holley car in Montgomery four days after the accident, but testified that he saw no blood, hair, nor fragments of cloth underneath the Holley car, but that he did see where some slight rubbing had occurred under the Holley car. Dr. Rehling, the State Toxicologist, made an examination of objects found on the underside running gear of the Burkett car, and found that it contained blood, hair and clothing.

Young Josey was last seen the night of July 13th between 12 and 1 o'clock on the highway leading from McKenzie to Red Level trying to thumb a ride. He was on the opposite side of the highway from which his body was found. Two witnesses who went to the scene of the accident about daylight the morning of the accident testified that they found on the left side of the highway in the direction in which the cars were going, and at about the edge of the blacktop, a piece of a cap, some teeth and a piece of flesh with a bone in it, a piece of watch chain, and blood marks on the pavement. They further testified that these objects were some 20 or 30 feet from the spot where young Josey's body finally came to rest, and from the body, was in the direction from which the cars were approaching. The blood marks angled across the roadway to near the point where Josey's body was picked up. A part of a cap was also found near the spot where Josey's body was picked up. Burkett testified that the lights from the Holley car were shining in his rear-view mirror and distracted him to a certain extent near the point where the two cars passed over Josey's body.

Appellant's Assignments of Error contain eleven grounds. Assignments 1 and 11 are based upon the trial court's action in refusing to grant appellant's motion for a new trial. Assignments 2, 3, 4, 5 and 7 are based on the trial court's refusal of the affirmative charge for the defendants in various forms.

In the case of White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479, 480, this court said:

'1. That, while public highways are open to the proper use of automobiles and other motor vehicles, the law exacts of operators of such machines therein a prudent and careful regard for the rights of others who are or may be lawfully using the public way; and the operator is liable for the consequences of negligence, in the operation of any such motor vehicle, to the injury of another traveler who is in the proper use and enjoyment of the common highway. Barbour v. Shebor, 177 Ala. 304, 58 So. 276; McCray v. Sharpe, 188 Ala. 375, 66 So. 441; Reaves v. Maybank, 193 Ala. 614, 69 So. 137; Birmingham R. L. & P. Co. v. Smyer, 181 Ala. 121, 61 So. 354, 47 L.R.A., N.S., 597, Ann.Cas.1915C, 863; Christy v. Elliott, 216 Ill. 31, 74 N.E. 1035, 1 L.R.A., N.S., 215, 108 Am.St.Rep. 196, 3 Ann.Cas. 487; 28 Cyc. pp. 25, 26; 2 R.C.L., 'Automobiles,' p. 1182 et seq.; Huddy on Automobiles, §§ 45, 46.

'2. That degree of care to be observed by such operators, with respect to the rights of others lawfully using a public way, is the care a reasonably prudent man would exercise and observe, under like circumstances. That is, the operators of such vehicles, as well as pedestrians on the highway, must recognize the rights of others, and take reasonable care and precaution to avoid inflicting wrong and injury. Barbour v. Shebor, supra; McCray v. Sharpe, supra; Reaves v. Maybank, supra; Alabama City G. & A. R. Co. v. Lumpkin, 195 Ala. 290, 70 So. 162; Birmingham R. L. & P. Co. v. Williams, 158 Ala. 381, 48 So. 93; Cecchi v. Lindsay, 1 Boyce 185, 24 Del. 185, 75 A. 376; 28 Cyc. 27, 28; 2 R.C.L. p. 1182 et seq.; Berry Law of Automobiles, § 124, p. 113; Id., § 171, p. 166; Huddy on Automobiles, §§ 46, 47.

'3. What is the exercise of reasonable care by an operator of a motor vehicle on public highways depends upon the circumstances of the particular case, as bearing upon the conduct and the affairs of men; for what may be deemed reasonable and prudent in one case may, under different circumstances and surroundings, be gross negligence. Brown & Flowers v. Central of Georgia R. Co., 197 Ala 71, 72 So. 366; McCray v. Sharpe, supra; Perkins v. Galloway, 194 Ala. 265, 69 So. 875, L.R.A.1916E, 1190; Reaves v. Maybank, supra; Hood & Wheeler Fur. Co. v. Royal , 76 So. 965; Grand Trunk Railway Co. of Canada v. Ives, 144 U.S. 408, 417, 12 S.Ct. 679, 36 L.Ed. 485.

'4. The terms 'ordinary care' and 'reasonable prudence,' as applied to the conduct and the affairs of men, are declared to have only a relative significance, depending upon the special circumstances and surroundings of the particular case, and to defy arbitrary definition. When a given state of facts is such that reasonable men may differ as to whether or not negligence intervened, as whether or not ordinary care and reasonable prudence characterized the actions and conduct of an actor, the determination of such question becomes a matter for the jury. Grand Trunk Ry. Co. of Canada v. Ives, supra; Baltimore & O. R. Co. v. Griffith, 159 U.S. 603, 16 S.Ct. 105, 40 L.Ed. 274; Texas & Pacific Ry. Co. v. Gentry, 163 U.S. 353, 16 S.Ct. 1104, 41 L.Ed. 186; Warner v. Baltimore & Ohio R. Co., 168 U.S. 339, 18 S.Ct. 68, 42 L.Ed. 491; Pennsylvania R. Co. v. White, 88 Pa. 327, 333; 12 Rose's Notes, U.S.Rep. 171, 176.

'5. 'The question of negligence is one of law for the court only when the facts are such that all...