Malone Freight Lines v. Tutton

• Decision Date: 26 November 1949
• Docket Number: No. 12916.,12916.
• Citation: 177 F.2d 901
• Parties: MALONE FREIGHT LINES, Inc. v. TUTTON et al.
• Court: U.S. Court of Appeals — Fifth Circuit

177 F.2d 901 (1949)

MALONE FREIGHT LINES, Inc. v. TUTTON et al.

No. 12916.

United States Court of Appeals Fifth Circuit.

November 26, 1949.

A. Walton Nall, Atlanta, Ga., for appellant.

Barry Wright, Rome, Ga., for appellees.

Before HUTCHESON, HOLMES, and SIBLEY, Circuit Judges.

SIBLEY, Circuit Judge.

This consolidated appeal relates to two suits for injuries suffered in the same automobile accident, tried together, with verdicts for $10,000 and $5,000 in favor of J. E. Tutton, Jr., and his wife, Mrs. Jessie May Tutton, occupants of the automobile, against appellant whose truck and trailer were struck from behind while stopped on the highway in the night. The questions argued are these: Was there evidence of appellant's negligence? Did the evidence demand a finding that appellees were contributorily negligent? Did the Court err in admitting evidence of the funeral expenses of appellees' minor child who was killed in the accident?

The evidence is clear that the truck and trailer, operated for appellant in hauling freight, totaling an aggregate weight of about 23 tons, was proceeding west in Alabama on a highway the paved portion of which was 18 to 20 feet wide, but having shoulders of eight to ten feet additional width, when about midnight the gasoline in one of the tanks gave out. A shift was made to the other tank but the self-starter did not draw gasoline from the second tank, the batteries were unable to move the vehicles off the pavement, and there they stayed till about 4:30 or 5 A.M. The incorporated town of Livingston, Alabama, was only a mile ahead, but the driver was not familiar with the road. He put out two flares to the rear of the trailer, one 25 to 50 feet from it, and one about 250 feet, and also one 100 feet to the front. The red tail light on the trailer was burning at first but went out or was turned out later. A number of vehicles passed going both ways, some of which the truck driver stopped with his flashlight. Two trucks attempted to push his vehicles off the road but the bumpers did not match and they failed. No message was sent to Livingston for a wrecker or a fresh battery or other aid though ambulance and wrecker were obtained there promptly after the accident. The night was dark with intermittent fog. The trailer was painted dark green.

Appellees in an automobile owned by Tutton left Rome, Georgia at about midnight going west. Tutton drove till about 30 minutes before the accident when he gave Mrs. Tutton the wheel she having 12 years' experience in driving and he took the rear seat and fell asleep. He was awakened by a lurch of the car to the left, saw the two flares on his right, and then the dark mass of the trailer close ahead The right front of the automobile hit the rear of the trailer to the left of its center, moving it some eight feet. Tutton was knocked unconscious. Mrs. Tutton testifies she was driving about 35 to 40 miles per hour, she saw the two flares (which were oil pots with a small wick) sitting in the center of the right-hand lane of the highway, thought they indicated some defect in the highway on that side, slackened her speed and veered left to miss the flares, and was straddling the middle line when she suddenly saw the dark mass ahead. She says there was no light on it, no reflectors, and she saw no flashlight. It was quite foggy. She pulled further to the left, unable to do anything else. The truck driver testifies the flares were in the center of the road, that there were two reflectors swung low beneath the rear of the trailer, that he was behind the trailer waving his flashlight, and that the automobile was coming very fast, so that he had to jump aside to escape injury. Another occupant of the car, asleep when the accident happened, and not much hurt, testifies that the truck driver immediately afterwards told her he was asleep in his cab at the time and did not know how it happened.

Title 36 of the Alabama Code, Section 25(a), prohibits the parking or leaving standing, any vehicle, whether attended or unattended, upon the paved or main traveled portion of any highway, outside of a business or residence district, when it is practicable not to do so; and in no event unless there is a clear and unobstructed width of not less than fifteen feet left upon the main traveled portion for free passage of other vehicles. Subsection (c) is: "The provisions of this section shall not apply to the driver of any vehicle nor to any vehicle which is disabled while on the paved or...