Hubbard v. Thrasher, 7 Div. 47.

• Decision Date: 20 November 1934
• Docket Number: 7 Div. 47.
• Citation: 26 Ala.App. 252,157 So. 680
• Parties: HUBBARD v. THRASHER.
• Court: Alabama Court of Appeals

157 So. 680

26 Ala.App. 252

HUBBARD v. THRASHER.

7 Div. 47.

Court of Appeals of Alabama

November 20, 1934

Appeal from Circuit Court, Etowah County; W. B. Merrill, Judge.

Action under homicide statute by Thula Thrasher, as administratrix of the estate of William Robert Thrasher, deceased, against T. C. Hubbard and another. From a judgment for plaintiff, the named defendant appeals.

Affirmed.

L. B. Rainey and Walter M. Thompson, both of Gadsden, for appellant.

McCord & McCord, of Gadsden, for appellee.

BRICKEN Presiding Judge.

This appeal involves a suit brought by appellee as administratrix of the estate of William Robert Thrasher, deceased, against appellant and Ed Parker, in the circuit court of Etowah county.

The action was brought to recover the sum of $20,000 as damages under our homicide statute (Code 1923, § 5696) for the negligent killing of plaintiff's intestate, William Robert Thrasher.

It is averred in the complaint that Thrasher, the deceased, on or about the 2d day of November, 1932, was walking along the Attalla-Boaz public highway in Etowah county, at or near Moragne's Junction, and that at said time and place the defendant Hubbard was operating his automobile, and that the said Ed Parker, the other defendant, was also at said time and place operating his automobile, and that the said defendants so negligently managed, operated, or controlled their said motor vehicles as that the same ran violently into the plaintiff's intestate and seriously injured and damaged him, and as a result of said injuries he died on, to wit, the 4th day of November, 1932. The complaint further avers that the death of the said Thrasher was proximately caused by the combined negligence of the defendants while so operating their motor vehicles as is stated.

The facts as shown by the record are that the deceased, William Robert Thrasher, was traveling in a public highway in Etowah county, Ala., driving or leading a cow, which was roped. The deceased was traveling southward toward Attalla. The defendant Ed Parker was driving a model T Ford automobile along this highway going in a northerly direction toward Boaz. The defendant T. C. Hubbard was driving a Chevrolet Six automobile along said highway in a southerly direction going toward Attalla. No one other than the occupants of these two automobiles saw Mr. Thrasher when he was struck by one or the other or both of said automobiles. Just preceding the injury Mr. Thrasher is said by the witness J. L. Osborn to have been "on the left hand side of the road going towards Attalla" driving a cow, and that while so traveling he passed out of sight of the witness, and that Mr. Thrasher was next heard crying out as if he was hurt, and that witness then proceeded to the scene of the injury, where he found Mr Thrasher lying on the left-hand side of the road going toward Attalla with his left leg broken, the foot hanging down, and the bone sticking out. As the witness was going to the scene of the injury he saw the Ford car shown by the evidence to have been under the management and control of the defendant Ed Parker going northward toward Boaz, and when he reached the scene of the injury he saw the Chevrolet Six, which was in the custody and under the control of the defendant T. C Hubbard. The proof shows that in the Ford car with the defendant Ed Parker were two little boys, Lawrence Early and Joe Parker, who occupied the back seat of the Ford.

Ed Parker, one of the defendants, testified that when he "first noticed the man with the cow just before witness got to Will's Creek Bridge and he was driving the cow walking behind her, the cow was running, tied with a rope, the man was on the right side of the road coming to Attalla." The witness further testified that he passed the deceased without striking him or the cow, and that after he went by the deceased he met a car driving pretty fast and about twenty minutes afterwards heard about the deceased being struck, and that his attention was called to this fact by the boys in the back of the Ford; that the witness returned to the scene of the accident and saw the deceased sitting in the road, and that a truck from Attalla was there, also several ladies and two or three men, and that these people were then preparing to pick the injured man up; that he then turned around and went to a Mr. Brown's where the witness had started. On cross-examination, the witness testified that he did not hit the man and did not know who did hit him, that the witness saw Mr. Thrasher when he was two or three hundred yards from him and that he kept his eyes on the man and the cow all the time, and that the cow and the man passed him on the right of the road coming to Attalla.

Lawrence Early, a little boy 7 years old who was sitting on the back seat of the Ford car, testified that he saw Mr....