Karpeles v. City Ice Delivery Co.

Citation73 So. 642,198 Ala. 449
Decision Date13 April 1916
Docket Number6 Div. 211
PartiesKARPELES v. CITY ICE DELIVERY CO.
CourtSupreme Court of Alabama

Rehearing Denied Dec. 30, 1916

Appeal from City Court of Birmingham; C.W. Ferguson, Judge.

Action by Max Karpeles as administrator against the City Ice Delivery Company for damages for the death of his intestate in a collision with an automobile. Judgment for defendant and plaintiff appeals. Affirmed.

McClellan Somerville, and Gardner, JJ., dissenting in part.

Where a charge is merely misleading or not sufficiently specific or definite, it is the duty of the complaining party to request a more specific instruction before he can complain thereof on appeal or error.

The facts made by the complaint are that, while Nathan Lowenstein was upon a motorcycle upon a public street in the city of Birmingham, an automobile in charge or control of defendants upon said public street ran into or against the motorcycle so injuring intestate that he died. The first count alleged the negligence in a general way. The second count alleges negligence in that defendant's servant or agent in charge or control of said automobile on the occasion aforesaid, while acting within the line and scope of his authority as such servant or agent, wantonly or intentionally caused the death of plaintiff's intestate by wantonly and intentionally causing or allowing said automobile to run upon or against said vehicle on which intestate was, well knowing that to do so would likely or probably cause great personal injuries to or death of plaintiff's intestate. The pleas were not guilty, and contributory negligence: First, in that said motorcycle was run recklessly on the street, and driven at a greater speed than 16 miles per hour against an ordinance of the city of Birmingham, then in force and effect; second, that the motorcycle was being operated and run by one H.C. Brown, and that plaintiff's intestate was riding on said motorcycle behind said Brown, and knew when he mounted said motorcycle that said Brown was likely to operate said motorcycle across street intersections, and with such knowledge intestate negligently mounted said motorcycle, and negligently rode behind said Brown, as a proximate consequence of which he was injured. Other pleas set up the same thing in varying phraseology. The following charges were given at the request of defendant:

(F) The court charges the jury that the driver of the automobile in question, when he attempted to turn into Avenue E, had the right to presume that riders on motorcycles would not attempt to cross the intersection of Twenty-First Street and Avenue E at a rate of speed greater than 8 miles per hour.
(L) Same as (F), except "at a rate of speed as to be unable to prevent striking vehicles passing such intersection."
(P) The driver of an automobile when turning from one street to another has the right to presume that all other persons using the street will conform to the laws of the city, and such driver has the right to presume and act thereon, until it otherwise appears.
(R) If you believe from the evidence that the south side of Avenue E, by reason of its use as a team track, was not open to ordinary traffic, then I charge you that it was no violation of the ordinance for the driver of defendant's car to turn into Avenue E, after having passed the center of the intersection of Twenty-First street, and that part of Avenue E which is open to ordinary traffic.
(C) The court charges the jury that if they believe from the evidence that the driver of the automobile was running at a reasonably prudent rate of speed and attempted to turn into Avenue E in a reasonably prudent manner on the occasion complained of, you should return a verdict for defendant.
(D) The court charges the jury that if you believe from the evidence that the driver of defendant's automobile did what an ordinarily prudent man would have done under similar circumstances, you cannot find for plaintiff.
(J) The court instructs the jury that the driver of defendant's automobile before turning into Avenue E had a right to presume that any automobile or motorcycle coming from the opposite direction would not attempt to go over the crossing at Avenue E at a greater rate of speed than 8 miles per hour, and if you believe from the evidence than the motorcycle upon which plaintiff's intestate was riding attempted to make the crossing at a greater rate of speed than this, and that this act was the sole proximate cause of the collision, and of plaintiff's intestate's death, your verdict will be for defendant.
(K) Before plaintiff will be entitled to recover on account of any violation of the ordinance with reference to turning from one street into another, such violation of the ordinance must have been the direct cause of the action, and if, when the driver made his turn, the motorcycles were not then in view, but thereafter ran into the automobile at a high rate of speed, defendant would not be liable for the violation of such ordinance, even if there was a violation.
(17) If H.C. Brown, the driver of the motorcycle, was racing the motorcycle across Avenue E, and ran into the automobile because of the great speed at which the motorcycle was moving, and that this was the sole and proximate cause of the action, your verdict should be for defendant.
(G) Even if the jury should believe from the evidence that defendant's agent or servant was negligent in or about the operation of defendant's automobile at the time and place alleged, yet their verdict must be for defendant if they further find from all the evidence that the sole proximate cause of the collision and consequent death of plaintiff's intestate was the high rate of speed of the motorcycle on which plaintiff's intestate was riding at or near the place of the collision.
(M) If you believe from the evidence that the motorcycle upon which plaintiff's intestate was riding was running at a greater rate of speed at the time of the collision between it and defendant's automobile than is permitted by the ordinances of the city of Birmingham, and that such excessive rate of speed was the sole proximate cause of plaintiff's intestate's injuries and death, your verdict must be for defendant.
(2) If the jury believe from the evidence that H.C. Brown ran his motorcycle across Avenue E on the occasion complained of at a high and dangerous rate of speed, and that this was negligence on his part, and was the sole proximate cause of the injury, your verdict must be for defendant.
(H) The burden of proof is upon plaintiff to show that the proximate cause of plaintiff's injuries and death was the direct result of the negligence of the driver of defendant's automobile; if you are not reasonably satisfied from all the evidence that plaintiff has proven such negligence on the part of defendant's driver of the automobile, your verdict must be for defendant.
(1) The imposition of damages in this case would be by way of fine against defendant, and if the jury believe from the evidence that the circumstances surrounding the accident do not warrant the imposition of a large fine, then the jury could not, under the law and the evidence, impose such a fine.
(8) The damages in this case are solely by way of punishment, and the jury has the right to take into consideration all the facts and circumstances surrounding the accident, the speed of the automobile, the speed of the motorcycle, the conduct of the driver of the automobile, and the conduct of the driver of the motorcycle on the occasion complained of in determining whether or not a large or small fine shall be assessed against defendant in the event a verdict is returned against defendant.
(6) You are authorized to take into consideration the physical facts and circumstances surrounding the accident, and if the testimony of any witness is in conflict with such physical facts, then the jury may take into consideration such conflict in determining what weight they will give to the testimony of such witness.
(O) If you believe the evidence you must return a verdict for defendant the Birmingham Ice Factory Company.

Samuel B. Stern and Harsh, Harsh & Harsh, all of Birmingham, for appellant.

Stokely, Scriver & Dominick and Thach & Underwood, all of Birmingham, for appellee.

SAYRE J.

Appellee's objections to some expressions in the deposition of the witness Fletcher, made for the first time when the deposition was offered in evidence, were sustained in the court below and these several rulings are assigned for error. The deposition had been taken on oral interrogatories. Attorneys for appellee, defendant below, had refused to take part in the examination, and at the trial objected to the deposition as a whole, on the ground that the commission had been issued in a case not authorized by statute; but we doubt that this objection was tenable, and shall pass it by without comment, our opinion being that the rulings against specific parts of the deposition were free from reversible error--this, so far as concerns the nature of the facts sought to be proved by the several excerpts objected to, the mere conclusions of the witness going to the merits of the very issue to be tried by the jury, on the authority of Alabama City, G. & A. Ry. Co. v. Heald, 178 Ala. 636, 59 So. 461, and cases there cited. The objections to these parts of the depositions were not unduly delayed within the rule of Forehand v. White Sewing Machine Co., 70 So. 147. Their incompetency and illegality, with one exception, were apparent upon their face; and the practice is well settled that such evidence may be excluded at any stage of the trial. Whilden v. M. & P. Nat. Bank, 64 Ala. 1, 38 Am.Rep. 1. The statement of the witness that he was a Confederate veteran was wholly irrelevant and...

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