Johnson v. Coker
| Decision Date | 13 April 1967 |
| Docket Number | 1 Div. 351 |
| Citation | 281 Ala. 14,198 So.2d 299 |
| Parties | Maybell JOHNSON v. Donald William COKER et al. |
| Court | Alabama Supreme Court |
Cunningham, Bounds & Byrd, Mobile, for appellant.
R. F. Adams, Brock B. Gordon and McCorvey, Turner, Johnstone, Adams & May, Mobile, for appellee Redwing Carriers.
W. B. Hand and Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee Cherry.
This was an action for damages for wrongful death brought by Maybell Johnson, the administratrix of the estate of her husband, Norman W. Johnson, against Donald William Coker, Billy Wayne Cherry, and Redwing Carriers, Inc. (hereinafter called Redwing). The suit arose out of a motor vehicular accident involving three vehicles operated by the defendants and a fourth automobile in which plaintiff's intestate was a passenger.
The cause was tried before a jury and resulted in a judgment for the plaintiff and against the defendant Coker in the amount of $60,000. The jury further found in favor of defendants Cherry and Redwing and judgment was rendered accordingly. The plaintiff's motion for a new trial was denied and she perfected the instant appeal, the entire thrust of which is directed toward defendant Redwing.
The evidence was conflicting in certain areas, but the following facts are largely undisputed.
The accident occurred on U.S. Highway No. 43 in open country approximately one mile north of Jackson, Alabama, on November, 27, 1963 around 4:00 o'clock P.M. Highway No. 43, at the subject point, runs virtually north and south. It contains two lanes, each 10 1/2 feet wide, or a total highway width of 21 feet. The highway from the north comes down a hill, crosses a culvert in the valley and ascends a hill to the south. The collision occurred on the north slope before the culvert was reached. Officer Ray Harrell, an Alabama Highway Patrolman who investigated the accident, testified that he took measurements to determine the point of collision. He estimated that the distance from the lowest point in the valley to the crest of the hill to the north was 1/10ths of a mile and that the distance from the lowest point in the valley to the crest of the hill to the south was 2/10ths of a mile. He further estimated that the point of the fatal impact occurred approximately 350 feet on the north slope measured from the valley.
The general manner in which the accident occurred is not disputed, though particularity with reference to the relative positions of each of the vehicles and distances separating them at any given time during the sequence of events leading to the collision is wanting at times. A Ford automobile, driven by one Adolphus McDowell with plaintiff's intestate, Norman W. Johnson, as a passenger, was being followed in the southbound lane, down the northern slope, by a Buick driven by defendant Coker. In the northbound lane, coming down the southern slope, there were two Redwing Carrier tank trucks, about 200 yards apart, and a Triumph sports car being driven by defendant Cherry. While coming down the southern slope headed north, the Triumph pulled into the southbound lane to pass the rearmost Redwing truck, completed the pass, and returned between the trucks to its proper lane of traffic. The Ford, carrying plaintiff's intestate and traveling in the southbound lane, braked somewhat and was struck from behind by the Buick, the left front of the Buick striking the right rear of the Ford. The Ford was then thrown or continued across the center line of the highway into the northbound lane of traffic. It narrowly missed the first Redwing truck, clipped the rear fender of the Triumph as the little sports car darted off the east side of the highway and collided head on with the second Redwing truck in the northbound lane of traffic. The Buick came to rest on the west shoulder of the highway. Both occupants of the Ford were killed.
The plaintiff argues two assignments of error, both dealing with charges given to the jury at the request of Redwing, the first of which was as follows:
It is admitted that the rule in this State with reference to 'sudden peril' is that one suddenly confronted by unwarned peril is not held to the same standard of care as an ordinary, reasonable and prudent man under normal conditions. The plaintiff insists, however, and correctly, that this rule may not be invoked by one who has by his own misconduct brought about the sudden peril. Alaga Coach Line v. Foy, 227 Ala. 506, 150 So. 493; Pittman v. Calhoun, 231 Ala. 460, 165 So. 391. The theory of liability as to the defendant Redwing is that its driver, James Walley, seeing that the Ford was in difficulty, and having ample time to stop or take evasive action, did nothing. The plaintiff urges that the perilous situation was of Walley's making, and that the giving of the above charge, pretermitting freedom from fault in bringing about the sudden peril was error on authority of Birmingham Ry., Light & Power Co. v. Fox, 174 Ala. 657, 56 So. 1013.
We are clear to the conclusion that there was no testimony which remotely suggests that the Redwing truck created the perilous condition. On the contrary, the evidence shows the perilous situation to have been created when the Buick struck the Ford from behind and propelled it over into Redwing's lane of traffic where the second and third collisions occurred. We find no fault with the plaintiff's statements of law, but they are simply not applicable since Redwing's driver in no manner brought about the perilous situation.
As to the plaintiff's statement in brief that the giving of the above charge was held error in Birmingham Ry., Light & Power Co. v. Fox, supra, a perusal of that case fails to reveal any consideration whatsoever of a requested charge similar to the one now subject to question. In fact, the only language in the Birmingham Ry. decision applicable to the instant matter supports the soundness of the given charge. The court there said:
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Ex parte State
...such omission was requested. Gilmore Industries, Inc. v. Ridge Instrument Co., 288 Ala. 127, 258 So.2d 55 (1972); Johnson v. Coker, 281 Ala. 14, 198 So.2d 299 (1967). "By its express terms, Rule 51 permits an objection to an 'erroneous, misleading, incomplete or otherwise improper oral char......
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...was prejudice in giving an erroneous written charge. Western Union Telegraph Co. v. Gorman, 237 Ala. 146, 185 So. 743; Johnson v. Coker, 281 Ala. 14, 198 So.2d 299; Russell v. Relax-A-Cizor Sales, Inc., 274 Ala. 244, 147 So.2d 279. The charge here was not erroneous, being only misleading at......
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Isay v. Cameron
...so prejudicial as to constitute reversible error. It is argued that the error was not prejudicial under the holdings in Johnson v. Coker, 281 Ala. 14, 198 So.2d 299; City of Montgomery v. Jones, 277 Ala. 617, 173 So.2d 781, and Western Union Telegraph Co. v. Gorman, 237 Ala. 146, 185 So. 74......
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Bearden v. LeMaster, 8 Div. 304
...subsequent negligence. No exceptions were taken to the oral charge. We hold there was no error in giving this instruction. Johnson v. Coker, 281 Ala. 14, 198 So.2d 299; Deamer v. Evans, 278 Ala. 35, 175 So.2d Assignments of Error 5 and 6. The court gave at the request of plaintiff the follo......