McPherson v. Martin

• Decision Date: 27 May 1937
• Docket Number: 3 Div. 195
• Citation: 174 So. 791,234 Ala. 244
• Parties: McPHERSON v. MARTIN.
• Court: Alabama Supreme Court

174 So. 791

234 Ala. 244

McPHERSON v. MARTIN.

3 Div. 195

Supreme Court of Alabama

May 27, 1937

Appeal from Circuit Court, Escambia County; F.W. Hare, Judge.

Suit for damages by Susie B. Martin, as administratrix of the estate of Wright R. Martin, deceased, against James G McPherson. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Leon G Brooks, of Brewton, for appellant.

McMillan & Caffey, of Brewton, for appellee.

KNIGHT Justice.

Action under the Homicide Statute (Code 1923, § 5696), brought by appellee, plaintiff in the court below, against the appellant to recover damages for the death of her intestate. The complaint, in each count, charges that the appellant, while operating an automobile over and along a public highway known as United States Highway No. 31, at a point between Flomaton and Atmore, in Escambia county, so negligently operated the automobile "as to cause it to run into upon, or against a motorcycle upon which the plaintiff's intestate was then riding upon said highway, and as a proximate consequence of the negligence of the defendant as aforesaid, the plaintiff's intestate was caused to sustain injuries from which he afterwards died."

In addition to the general issue, defendant filed a number of special pleas setting up contributory negligence on the part of plaintiff. Special plea 3 is as follows: "3. That the plaintiff's intestate was himself guilty of negligence which proximately contributed to his injuries in this: that at the time of the accident he was driving the motorcycle, upon which he was riding, while drunk or in a state of intoxication and that at and just before the time of the accident he was from such intoxication in a condition which rendered him incapable of operating said motorcycle with proper diligence and skill but that notwithstanding this he continued to operate the same and as a proximate result of his said intoxicated condition he caused said motorcycle to collide with the automobile of the defendant."

There were verdict and judgment for plaintiff, and from this judgment the present appeal is prosecuted.

Five errors are assigned upon the record, four of which present for review the action of the court in overruling defendant's objection to certain questions propounded by the plaintiff to her witness Alvin Crawford.

The witness Alvin Crawford had testified, in substance, that the highway upon which the accident occurred was under construction; that the surface was "real smooth and soft," and "had been freshly graded and was being prepared for blacktop"; that on July 11, 1935, witness was in the employ of the Vandigriff Construction Company, and his duties were to sprinkle the highway then under construction; that on the night of the accident the defendant passed him coming towards Brewton, at a point on the highway some three, or four, or five hundred yards west of where the accident occurred; that he did not hear the collision "as the truck he was driving made too much fuss." Then the witness was allowed to testify as follows:

"The thing that first called my attention to the accident was the fact that I saw a light go up into the air. I then proceeded with my sprinkling truck on up to the place. There I found a man and a motorcycle lying in the road. I presume I was the first man at the scene of the collision as I did not see any one else there.

"The condition of the road was real smooth and soft. It was not rutted but was freshly graded. It had been sprinkled within fifteen or twenty minutes of the time of the collision. The road is only about thirty feet wide at this point. Counting the shoulders it is about forty feet. At that time the travelling public was using the road in order that same might be packed.

"With reference to the center of the road the body was lying about five to eight feet on the North side, which was on the motorcycle's side of the road. When I first got there the motorcycle was lying about three or four feet of the center of the road and on the motorcycle's right of the center. The light of the motorcycle was still burning. I stopped my sprinkling truck and left my headlights on and I made an investigation of the tracks of the two vehicles that collided. I got out and examined them and went back to get help immediately."

At this point, the plaintiff's attorney propounded the following question to said witness: "Could you tell from your investigation at just what point in the road with reference to the center of the highway the impact occurred, and if so, where?" To this question the defendant objected on the grounds that it called for the opinion or conclusion of the witness, and further, because it had not been shown that the witness "had knowledge of the facts at the time upon which he could base any such statement." This objection was overruled, and an exception was duly reserved by the defendant. The witness then answered: "I could. It took place about eight feet of the motorcycle's right-of-way from the center of the road. This was from the impression I saw."

Then the plaintiff's counsel asked the witness Alvin Crawford the following question: "What impression was there to show this fact?" The defendant objected to the question upon the same grounds of objection assigned to the preceding question. These objections were likewise overruled by the court, and an exception duly reserved by defendant, and the witness answered: "The tire had been partly knocked off of the automobile's right wheel, or all of the wheel was off, I would not say for certain. The ground had the sign of the hole which had been knocked in the fresh graded dirt where the two vehicles collided or struck."

The court committed no error in overruling defendant's objections to the above questions.

The evidence shows that the witness was upon the scene of the accident within a minute or two after the accident had occurred, and was the first person there with the exception of the defendant, that he had made an investigation of the facts, had an opportunity to observe the tracks of both vehicles, and the condition of the road, and his testimony shows that no other vehicle had approached or passed the place of the accident.

In such circumstances the general rule is that evidence as to tracks or other marks made by motor vehicles on the pavement or roadway is generally held admissible in...