International Harvester Co. v. Williams, 6 Div. 741.
Decision Date | 12 March 1931 |
Docket Number | 6 Div. 741. |
Citation | 222 Ala. 589,133 So. 270 |
Parties | INTERNATIONAL HARVESTER CO. ET AL. v. WILLIAMS. |
Court | Alabama Supreme Court |
Rehearing Denied April 9, 1931.
Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.
Action by Elgin Williams, Jr., a minor, suing by his next friend Elgin Williams, Sr., against the International Harvester Company and another. Judgment for plaintiff, and defendants appeal.
Affirmed.
Charge respecting recovery in case minds of jurors were left in state of confusion held properly refused as argumentative.
The following charges were refused to defendants:
Coleman, Coleman, Spain & Stewart, of Birmingham, and Huey, Welch & Stone, of Bessemer, for appellants.
Perry, Mims & Green, of Bessemer, for appellee.
Elgin Williams, Jr., a boy, age seven years, on the last anniversary of his birth, September 15, 1929, after alighting from a school bus in which he had been riding on his way home from school on November 4, 1929, while crossing a public highway near his home, came in collision with a passing truck, and as a consequence both bones in his left leg were broken a few inches below his knee.
The boy and his father each brought suit against the defendant; the boy claiming damages for the personal injury, the father claiming damages for loss of services of his minor son and expenses incident to the treatment of his injury. Both suits, by agreement of the parties, were tried at the same time before the same jury, resulting in a verdict and judgment for the plaintiffs, and the defendants have appealed. The questions presented by the assignments of error insisted upon are the same in both cases, and have been considered together.
The evidence is without dispute that Elgin Williams, Jr., was one of several school children who had been transported to the place of the injury in a school bus, and from three to five minutes before the injury the bus, which had been proceeding north along the highway, parked at one of the regular stopping places to allow some of the children to disembark, and that from seven to ten children, ranging in age from seven to seventeen, alighted from the bus and were separating to go to their respective homes.
Elgin's home was on Oak street, which intersected the highway on the west immediately opposite from the point where the bus stopped. Oak street did not cross the highway, but led off therefrom in a southwesterly direction. Elgin was the first to alight from the bus, and immediately passed around the rear thereof and, in his effort to cross the highway on his way home, came in collision with the passing truck immediately opposite the driver's seat. When he was last observed by the plaintiff's witnesses, he had passed behind the bus and was running across the highway between its center and the east margin, going west. The plaintiff's witnesses did not see the collision and the bus proceeded north without the driver or occupants thereof learning of the collision. The time of the collision was about 4 o'clock in the afternoon of November 4, 1929.
The evidence offered by the plaintiff further goes to show that the truck was proceeding south to the right of the center of the highway, at a rate of speed from twenty-five to thirty miles per hour, and that no signals of its approach were given as it approached and passed the place of the collision; that it ran beyond the point of the collision about seventy-five feet before coming to a stop.
The evidence offered by the defendants goes to show that the driver of the truck with his companion were on their way from Birmingham to Carrolton in Pickens county; that they were strangers and unfamiliar with the highway over which they were traveling; that the driver observed the bus when within one hundred yards of it; that it appeared to be an interurban passenger bus; that there was nothing in its appearance to indicate that it was a school bus; that as the truck approached the bus, he observed only one boy who was standing near the front end of the bus; that he glimpsed the boy, Elgin, just as he ran or walked against the passing truck.
The defendants' evidence further goes to show that the horn on the truck was sounded when the truck was within twenty to twenty-five feet of the bus; that as the truck approached the bus its speed was reduced from twenty miles per hour, which was its maximum speed, and when the collision occurred it was moving about five miles per hour, and was stopped within a few feet.
The judgment here is that the evidence and its conflicting tendencies presented a question for jury decision, as to whether the conduct of the driver of the truck in approaching and passing the school bus, while engaged in discharging its passengers, was in consonance with the conduct of a reasonably prudent man. If, as some of the evidence tended to show, the operator of the truck approached said bus without signals and at such rate of speed as that he was not able to observe the situation and avert the collision, this would warrant a finding that he was guilty of negligence. Reaves v. Maybank, 193 Ala. 614, 60 So. 137. On the other hand, if he discovered that a number of children were alighting from the bus and separating, going in different directions, and this was for the jury, and failed to exercise the care of a reasonably prudent person to avoid injury, this would constitute negligence. Reaves v. Maybank, supra.
The appellants however insist, notwithstanding the evidence may warrant a finding of negligence on the part of the operator of the truck, that they were entitled to the...
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