Langley Bus Co. v. Messer

• Decision Date: 26 March 1931
• Docket Number: 5 Div. 67.
• Citation: 222 Ala. 533,133 So. 287
• Parties: LANGLEY BUS CO. v. MESSER.
• Court: Alabama Supreme Court

133 So. 287

222 Ala. 533

LANGLEY BUS CO. v. MESSER.

5 Div. 67.

Supreme Court of Alabama

March 26, 1931

Appeal from Circuit Court, Chilton County; George F. Smoot, Judge.

Action for damages for personal injuries by Lorene Messer against the Langley Bus Company. From a judgment for plaintiff defendant appeals.

Affirmed.

Exclusion of passenger's opinion whether bus driver acted properly to prevent accident held properly excluded, where witness was not qualified to give opinion on such subject.

The following charges were refused to defendant:

"2. The driver of a motor vehicle upon the highways of the State has the right to assume that vehicles which he approaches from the rear will be lighted by a red light and if you believe from the evidence that the accident was caused by the absence of a red light upon the vehicle in which plaintiff was riding your verdict must be for the defendant.

"3. It is the duty of a guest in an automobile to take all reasonable precautions for her safety, and if you believe from the evidence that she acquiesced in, or did not protest, the parking, or stopping, or backing, of the automobile in which she was riding upon the highway without lights, and that such stopping, parking or backing contributed to the accident, your verdict must be for the defendant.

"4. I charge you that, if you believe the evidence in this case, you cannot find a verdict for the plaintiff under Count 1."

"6. I charge you, that if you believe the evidence in this case you cannot find a verdict for the plaintiff under Count B charging wanton conduct."

"8. I charge you that if you believe from the evidence that the Plaintiff set out upon a joint enterprise with her brother to go to meet or overtake their sister and she as well as he had control over the movement of the Ford Car, then I charge you that his negligence was her negligence as a matter of law; and if you believe further that Hubert Messer, the driver of the Ford Car, was guilty of contributory negligence which contributed proximately to her injuries, then plaintiff cannot recover."

The following question was propounded by defendant to witness Kimbrough, the sustaining of plaintiff's objection to which is made the basis of assignment of error 9:

"Was there anything that the driver of the bus on the right-hand should have done or anything that he left undone to prevent the accident."

Rushton, Crenshaw & Rushton, of Montgomery and Lawrence F. Gerald of Clanton, for appellant.

Grady Reynolds and Omar L. Reynolds, both of Clanton, for appellee.

BROWN J.

This is an action on the case brought by the appellee against the appellant to recover damages for personal injuries, inflicted in consequence of the automobile in which she was riding being run into from the rear by the defendant's passenger bus operated between Montgomery and Birmingham over the Montgomery-Birmingham highway.

The complaint as originally filed consisted of a single count, designated as count 1, and on the day of the trial two counts were added by amendment, the counts so added being designated as counts A and B. The defendant pleaded the general issue, not guilty, and contributory negligence "in short by consent." Counts 1 and A ascribed the plaintiff's injury to the negligence of the defendant's agent or servant in the operation of the bus, and count B to the wanton conduct of defendant's agent or servant.

After the close of the evidence and the argument of the case, counts 1 and B were stricken from the complaint on plaintiff's motion, and the case went to the jury on count A, and defendant's pleas of not guilty and contributory negligence, resulting in a verdict and judgment for the plaintiff, from which the defendant has appealed.

The appellant's major contention is that the court erred in refusing the affirmative charge, which it requested in writing, and in denying its motion for new trial on the ground that the verdict was contrary to the great weight of the evidence. The contention, to state it in the language of appellant's brief, is: "Unless there was some testimony offered on behalf of the defendant or offered by the plaintiff in rebuttal, there was no testimony whatsoever that the defendant, or its agent, servant or employee, was negligent on the occasion complained of. It has many times been considered and decided that the mere happening of an accident does not give rise to a presumption" of negligence.

The rule applicable is, when the plaintiff adduced evidence showing the fact of the casualty, and the attendant circumstances, that it was caused by the defendant's bus operated and in charge of the defendant's agent or servant, and is such as, in the ordinary course of things, does not happen, without negligence, this was sufficient, prima facie, to shift to the defendant the burden of going forward with the evidence-res ipsa loquitur.

The defendant may rebut the inference of negligence arising from plaintiff's evidence by showing that the bus was properly equipped with approved devices and appliances to enable the operator to discover obstructions in its path at such distance that a collision therewith could be averted, and with braking appliances to check its speed or stop it, if needs be, and that it was properly managed and controlled-facts peculiarly within the knowledge of the defendant-and, unless the evidence in this respect is undisputed and free from adverse inferences, the question of negligence is one of fact for the jury. Code of 1923, §§ 6264, 6266; Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257; Louisville & Nashville Railroad Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L. R. A. 620; Tombigbee Valley R. R. Co. v. Howard, 185 Ala. 612, 64 So. 338; Ford v. Hankins, 209 Ala. 202, 96 So. 349; Hughes v. A. C. & S. R. R. Co., 85 N. J. Law, 212, 89 A. 769, L. R. A. 1916A, 927, and note 930.

If, however, the evidence in rebuttal of the inference of negligence, in case such as this, arising from proof of the casualty and the attending circumstances, is without dispute and free from adverse inferences, the plaintiff, in order to recover, must offer other evidence of negligence, and, in the absence of such, the question is one of law for the court. Lawson v. Mobile Electric Co., supra.

The evidence adduced by plaintiff tends to show that the Ford car in which the plaintiff was riding, as a guest of her brother, was moving north on the right side of the highway about 9 o'clock at night, equipped with head and tail lights, and immediately before the collision it passed the south-bound bus moving along the opposite side of the highway, and immediately thereafter the glare of the lights of the north-bound bus was observed by the plaintiff as they flashed on the Ford, and immediately thereafter the north-bound bus collided with the Ford and knocked it off the highway, some thirty feet into the ditch, crushing the hind wheel and turning it over on its back. The plaintiff was thrown from the Ford and rendered unconscious.

The witness Stockman, the driver of the north-bound bus testified: "It was night, about 8:30. I was really due there (Verbena) at 8:15, and was about fifteen minutes late, and I had checked up to pass the other bus, and on top, where this Ford was parked-it is kinder of a little incline, you can see fairly well-a little hill leading up on top; and I checked my speed down to, well, I will say 25 or 28 miles an hour. And I thought everything was clear, at least I didn't see a thing in the world in front of me, so I began to step on the accelerator; but didn't gain much headway, on account of the incline. When I got up on the incline, just like a flash I saw this Ford-didn't see any light-and...