Howell v. Greyhound Corp., 6 Div. 340

• Citation: 59 So.2d 587,257 Ala. 492
• Decision Date: 13 March 1952
• Docket Number: 6 Div. 340
• Parties: HOWELL v. GREYHOUND CORP. et al.
• Court: Supreme Court of Alabama

Page 587

59 So.2d 587

257 Ala. 492

HOWELL v. GREYHOUND CORP. et al.

6 Div. 340.

Supreme Court of Alabama.

March 13, 1952.

Rehearing Denied June 26, 1952.

Taylor, Higgins, Windham & Perdue, Birmingham, for appellant.

Lange, Simpson, Robinson & Somerville, Birmingham, for appellees. The following charges were given at the request of defendant:

'15. I charge you gentlemen of the jury, if you are reasonably satisfied from the evidence that the deceased, Connie Lee Howell, was crossing the highway at a place which was not at an intersection or a designated place for pedestrians to cross said highway, then in that event I charge you that the law placed a duty on the part of the said Connie Lee Howell to use due care for his own safety in crossing at said place, and if you are reasonably satisfied from the evidence that he negligently failed to so conduct himself and as a proximate consequence thereof he received the injuries which produced his death, then in that event I charge you that you cannot return a verdict in favor of the plaintiff and against the defendants under Count One of the complaint.'

'16. I charge you gentlemen of the jury, if you are reasonably satisfied from the evidence that the operator of the bus, on the occasion complained of saw the deceased, Connie Lee Howell, while in the parkway and at a place of safety therein, then in that event I charge you that he had the right to presume that Mr. Howell would not place himself in a place of peril, and I further charge you that he had the right to indulge in this assumption up until the time that it became reasonably apparent to him, or should have become reasonably apparent to him acting as a reasonably prudent person would have acted, that the deceased was not going to so conduct himself.'

'24. I charge you gentlemen of the jury, before you can find in favor of the plaintiff and against the defendants on the theory of subsequent negligence, you must be reasonably satisfied from the evidence that the defendant, Mr. Minshew, actually saw the plaintiff's intestate in a place of peril at a time when said defendant could, by the use of all means at his command, have avoided the injury, and you must be further reasonably satisfied from the evidence that the defendant, Minshew, was guilty of negligence after he actually became aware of the perilous position of the plaintiff's intestate.'

LAWSON, Justice.

This is a suit under the homicide statute, § 123, Title 7, Code 1940, by appellant, as administrator of the estate of Connie Lee Howell, deceased, against appellees, the Greyhound Corporation and Fred Minshew, to recover damages for the alleged wrongful death of the intestate, which occurred at about 1:15 a. m. November 14, 1948, on a highway between Birmingham and Bessemer, in Jefferson County, when intestate was run into by a bus owned by the Greyhound Corporation and which was being driven by its employee, Fred Minshew, while acting within the line and scope of his employment. There were two counts in the complaint, one charging negligence, the other charging wantonness. The plea was in short by consent in the usual form. The case went to the jury on both counts of the complaint. Under the negligence count and the plea of the defendants, issues of simple initial negligence, contributory negligence of the plaintiff's intestate, and subsequent negligence were submitted to the jury.

There was verdict for the defendants. Judgment was in accord with the verdict. Plaintiff's motion for new trial having been overruled, he has appealed to this court.

It is insisted that the trial court erred in overruling the motion for new trial because the verdict of the jury and the judgment rendered thereon were contrary to the great weight of the evidence. We see no reason to set out the evidence. It has been read with considerable care and we find it to be in decided conflict on all material issues, and we think the evidence clearly made a case for the jury's determination. In fact, the verdict is, in our opinion, well supported by the evidence. Certainly the preponderance of the evidence was not so decidedly against the verdict as to convince us that it was wrong and unjust. Davis v. Radney, 251 Ala. 629, 38 So.2d 867, and cases cited.

Donald Suggs, a passenger on the bus at the time intestate was killed, was a witness for plaintiff. In regard to the speed of the bus at the time intestate was hit, Suggs was asked the following questions on direct examination and gave the following answers:

'Q. You know how to drive a car, don't you? A. Not very well.

'Q. Have you had occasion to ride in cars and observe the speedometer on them, and notice the speed as you traveled along? A. Yes, sir.

'Q. In your judgment and estimation what speed was the bus traveling when this couple went across the road from your left to your right? A. Somewhere from 50 to 60 miles an hour.

'Q. Somewhere from 50 to 60 miles an hour in your estimation? A. I don't know; I didn't look at the...