J.C. Byram & Co. v. Bryan

• Decision Date: 31 March 1932
• Docket Number: 6 Div. 988.
• Citation: 140 So. 768,224 Ala. 466
• Parties: J. C. BYRAM & CO. v. BRYAN.
• Court: Alabama Supreme Court

140 So. 768

224 Ala. 466

J. C. BYRAM & CO. v. BRYAN.

6 Div. 988.

Supreme Court of Alabama

March 31, 1932

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages for personal injuries by Virginia Bryan, a minor suing by her next friend, R. L. Bryan, against J. C. Byram &amp Co. From a judgment for plaintiff, defendant appeals.

Affirmed.

B. F Smith, of Birmingham, for appellant.

J. K. Taylor and Chas. W. Greer, both of Birmingham, for appellee.

BOULDIN J.

The action is for alleged personal injuries received by a passenger on a street car in a collision between the street car and a truck driven at the time by an employee of defendant.

Count 2 is a good count for wanton injury, not subject to the demurrer interposed. Alabama Great Southern Railroad Co. v. Burgess, 114 Ala. 587, 22 So. 169; Birmingham R., L. & P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361; Barbour v. Shebor, 177 Ala. 304, 58 So. 276; St. Louis & S. F. Ry. Co. v. Dennis, 212 Ala. 590, 103 So. 894; Garth v. Alabama Traction Co., 148 Ala. 96, 42 So. 627; Southern Railway Co. v. Weatherlow, 153 Ala. 171, 44 So. 1019; Jones v. Keith, 223 Ala. 36, 134 So. 630.

The collision occurred at the intersection of Tenth avenue, or Georgia road, with Fiftieth street in Birmingham. Fiftieth street is paved, and Tenth avenue paved to this intersection. Width about the same, 45 to 50 feet. The street car was moving west on Tenth avenue, and the truck north on Fiftieth street, going down grade toward the intersection.

Evidence for plaintiff tended to show the street car stopped on the east side of the intersection for exchange of passengers, then moved into the intersection, and that the truck, a Mack truck, loaded with five tons of slag, suddenly, and at an estimated speed of thirty miles per hour, ran head-on into the side of the street car, striking the street car about two-thirds the way back, knocking the rear end off the track, and according to one witness, the front wheels also. It was in the daytime, and no traffic or other conditions prevented the normal movement of the vehicle in a safe manner.

The driver of the truck testifies he saw the street car standing at the entrance of the intersection when 75 feet from the intersection; that he could come to a stop at the speed he was going within 30 feet. His version is that on seeing the street car he applied brakes, slowed down, but reached the crossing, or nearly so, before the street car started, and released his brakes to go on across, when suddenly the street car, the motorman looking in a different direction, ran in front of him, too late for him to avoid the collision.

The evidence, which seems without...