McQueen v. Jones

• Decision Date: 25 November 1932
• Docket Number: 2 Div. 997.
• Citation: 145 So. 440,226 Ala. 4
• Parties: MCQUEEN v. JONES.
• Court: Alabama Supreme Court

145 So. 440

226 Ala. 4

MCQUEEN v. JONES.

2 Div. 997.

Supreme Court of Alabama

November 25, 1932

Rehearing Denied Dec. 22, 1932.

Appeal from Circuit Court, Dallas County; Thos. E. Knight, Judge.

Action for damages for personal injuries by Lula Mae Jones against Hugh I. McQueen. From a judgment for plaintiff, defendant appeals.

Affirmed.

The complaint alleges that "plaintiff was a guest of defendant, and riding as such in an automobile," the property of defendant, "and defendant did so negligently drive said automobile on a highway in Elmore county, Alabama at a crossroad near the store of F. M. Thrash between Eclectic and Martin Lake, that as a proximate consequence of said negligence, the automobile collided with another automobile then and there on said highway, and as a proximate result of said negligence, plaintiff, who was at the time of said collision still a guest of defendant, and still riding as such in said automobile of defendant, sustained" the injuries described. And it is further averred that "all of which injury and loss plaintiff avers she suffered as a proximate consequence of the said negligence of defendant wherefore this suit."

On the trial plaintiff's attorney stated that he noted on the jury list the names of insurance men and moved the court to qualify the jury as to any connection with or employment by the Continental Casualty Company. Defendant objected to the motion and moved for a continuance on the ground that there was no proof that any insurance company was interested in, or a party to, the issues in the case; that it was prejudicial to defendant's rights, made for the purpose of prejudicing the jury, the same having been made in the presence and hearing of the jury.

The trial court overruled the defendant's objection and proceeded to qualify the jury in accordance with the motion.

London Yancey & Brower, of Birmingham, and Harry W. Gamble, of Selma, for appellant.

S. F Hobbs, of Selman, for appellee.

THOMAS J.

The suit was for personal injuries sustained by plaintiff as a guest in defendant's car.

The complaint sufficiently stated the cause of action and established duty to the guest in the car (Perkins v. Galloway, 194 Ala. 269, 69 So. 875, L. R. A. 1916E, 1190; Thomas v. Carter, 218 Ala. 55, 117 So. 634; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 575, 119 So. 610; Wurtzburger v. Oglesby, 222 Ala. 151, 131 So. 9), and charged negligence in general terms-the negligent driving of the car and as a proximate consequence the car collided with another car, causing the injury. This pleading was not within the rule of cases requiring that the act averred must show and amount to negligence. Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; Birmingham Ry., Light & Power Co. v. Littleton, 201 Ala. 141, 77 So. 565; Birmingham Electric Co. v. Baker, 219 Ala. 324, 122 So. 316; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; Birmingham Rwy., L. & P. Co. v. Wilcox, 181 Ala. 512, 61 So. 908.

There was no error in sustaining objections to the questions to Holley, "I asked him if it was possible to see this little road when coming down the highway?" and "I will ask you whether or not there was sufficient space behind that Chevrolet for McQueen's car to pass?" The witness had stated the facts, locations, and elevations of the road and the cornfield and embankment adjacent thereto. The questions were leading. However, there was no error for that the witness stated the facts and was permitted to say: "There is a cornfield and an embankment to obstruct the view of the smaller road from the highway. You can't tell there is a road there until you get right on it; that is, you can't tell from the highway that there is a road there until you get right on it. The corn kept you from seeing it. *** The road that just comes across that field is about ten feet wide; it starts from my father's cornfield. It had weeds on each side of it. The road that comes into the highway is below the road level; that is, the highway level. The way the Chevrolet was coming in was below the road level. There is a ditch on the side of the road about 2 1/2 feet or 3 deep."

The shorthand rendition of facts sought by the two questions to Holley to which the plaintiff's objections were sustained (Alabama Great Southern Railroad Co. v. Linn, 103 Ala. 134, 15 So. 508; Jones v. Keith, 223 Ala. 36, 134 So. 630; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; Id., 222 Ala. 120, 130 So. 807), if error, was therefore cured by the answers of that witness detailing the facts of the locus in quo. And no reversible error was presented by these rulings.

The several objections and exceptions taken to the testimony of the witness McQueen present no reversible error, for that the witness was likewise permitted to detail the facts-as of the location of the road, obstructions, or the lack thereof, the distances of the cars and locations on the two roads before and at the time of the impact.

The driver of the car-Mr. McQueen-was cross-examined as to the place of the accident, and testified as follows:

"I did not see the road till I got up to it. Yes, sir, I was on the right hand side of the road. I was driving about 35 miles an hour. I did not see any sign to slow down or other mark on the highway. I didn't see any; I wasn't looking for them. Yes, sir, I saw the corn field over there. The corn was about this high, maybe taller (indicating). I was about forty feet away when the other car came into the highway. Yes, sir, it came out suddenly and I put on the brakes. ***

"I don't know how far across the road the Chevrolet got before I hit it; but he was right in front of me when I hit him. I was not entirely on the right hand side of the highway; I might have been one or two feet off. No, sir, there were no ruts in the road. There were no marks on the road to show one side from the other; it was a good gravel road. This car came out on me suddenly and I was not over forty feet away. I didn't hear him blow his horn or do anything to give me a warning. I hit just about the center of the car. No, sir, I did not know that side road was there till I got there. ***

"I did not know that side road was there until I got nearly there, until I saw that car come out. I saw the car come out when I was forty feet away. Forty feet is about as far as from here to that railing (indicating); not quite as far from here to the wall (indicating). It is not quite the width of the court room. At that distance I knew there was something there because I saw the car coming out, and he got nearly across the highway; his rear wheels were just a little over the center; a foot or two to the right. Yes, sir, he was hit nearly over my side of the highway. Yes, sir, that left my side perfectly unobstructed. ***

"I didn't see that open space over there at the time of the accident. It was there, but I was too busy to look for an open space. I was a little over the center line of the highway. No, sir, I never did change my course. Yes, sir, the right hand half of the road was unobstructed."

The defendant sought to ask witness (McQueen) on redirect examination, "You don't mean to tell the jury that the right hand side of the road was clear," and "That Chevrolet didn't leave enough space for you to go behind it did it?" Thus the defendant sought to have the witness explain what he meant by the use of the words "the right hand half of the road was unobstructed," and whether the space on the right hand was room enough to pass or not. These questions are justified in their refusal as leading.

The remarks of counsel to which exceptions were taken were properly excluded, the jury instructed not to observe or be influenced by the same, and the bill of exceptions concluded, as to this: "The Court, then after getting such assurance from each of the jurors, overruled the motion of defendant, and the defendant then and there duly and legally excepted."

There was no error in declining to take the case from the jury. The rule of our decisions as to improper arguments and motions are understood, and need not be repeated. Moulton v. State, 199 Ala. 411, 414, 74 So. 454; Birmingham Railway, Light & Power Co. v. Gonzalez, 183 Ala. 273, 287, 61 So. 80, Ann. Cas. 1916A, 543; Carter v. State, 219 Ala. 670, 123 So. 50; Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Alabama Great Southern Ry. Co. v. Grauer, 212 Ala. 197, 102 So. 125; Feore v. Trammel, 212 Ala. 325, 102 So. 529; Burns v. State (Ala. Sup.) 145 So. 436; Anderson v. State, 209 Ala. 36, 44, 95 So. 171; Tennessee River Nav. Co. v. Walls, 209 Ala. 320, 96 So. 266; Davis v. State, 209 Ala. 409, 96 So. 187; Birmingham Electric Co. v. Ryder (Ala. Sup.) 144 So. 18, and authorities cited; Lutie Patton Pryor, as G'd'n v. Limestone County (Ala. Sup.) 144 So. 18.

The suggestion of qualification of the jurors with regard to their relations to, or interest in, the Continental Casualty Company, does not present reversible error, though the motion was made in the presence of the jury. Gammill v. Culverhouse, 217 Ala. 65, 114 So....