Mobile Cab & Baggage Co. v. Busby

• Decision Date: 19 November 1964
• Docket Number: 1 Div. 57
• Citation: Mobile Cab & Baggage Co. v. Busby, 169 So.2d 314, 277 Ala. 292 (Ala. 1964)
• Parties: MOBILE CAB & BAGGAGE CO., Inc., et al. v. Joyce BUSBY.
• Court: Alabama Supreme Court

Page 314

169 So.2d 314

277 Ala. 292

MOBILE CAB & BAGGAGE CO., Inc., et al. v. Joyce BUSBY.

1 Div. 57.

Supreme Court of Alabama.

Nov. 19, 1964.

Inge, Twitty & Duffy, Mobile, for appellant Mobile Cab & Baggage Co.

Armbrecht, Jackson, McConnell & DeMouy, Mobile, for appellants Ikner and Elliott.

Cunningham & Bounds, Mobile, for appellee.

LIVINGSTON, Chief Justice.

Joyce Busby sued the Mobile Cab and Baggage Company, a Corporation, the owner and operator of a taxicab, and G. H. Elliott, the owner of another automobile, and C. M. Ikner, the driver of the Elliott automobile, for damages for personal injuries received when the taxicab and the Elliott automobile ran together at a street intersection in the City of Mobile, Alabama.

The amended complaint contained one count against all the defendants, jointly and individually, and alleged, in substance, that the plaintiff Busby was a passenger for hire in the taxicab, and that an automobile owned by Elliott and driven by Ikner, the agent of Elliott, and the taxicab ran together at the intersection of Fulton Road and Dublin Street, public streets in the City of Mobile, Alabama; that all her injuries and damages were the direct and proximate result of the negligence of defendant Ikner, the agent of Elliott while acting within the line and scope of his authority in the operation of the Elliott automobile, and the concurring negligence of the defendant, Mobile Cab and Baggage Company, in the carriage of plaintiff as a passenger for hire.

There was a verdict and judgment for $1500 against all of the defendants, and they prosecuted separate appeals, assigning separate alleged errors.

No question is raised as to the sufficiency of any pleading.

ASSIGNMENTS OF ERROR OF THE MOBILE CAB & BAGGAGE COMPANY

The Mobile Cab and Baggage Company's assignment of error No. 4 is based on the refusal of that defendant's written request for the affirmative charge.

The oft-repeated 'scintilla rule' is here applicable, as is that other familiar rule that, in determining the propriety of the refusal of the affirmative charge for the defendant, the evidence must be viewed in its most favorable light for the plaintiff.

As to the Mobile Cab and Baggage Company, the evidence must also be weighed in the light of the rule which applies to the degree of care imposed by law on common carriers of passengers for hire. The degree of care imposed by law on common carriers of passengers is stated in Birmingham Ry., Light & Power Co. v. Barrett, 179 Ala. 274, 282, 60 So. 262, 264, as follows:

'* * * (1) Common carriers of passengers are bound, with respect to their undertaking to safely carry them, to exercise the highest degree of care, skill, and diligence, and are liable to passengers for the slightest degree of negligence proximately resulting in injury to them. (2) The 'highest degree' of care, skill, and diligence is a relative term, and means the highest degree required by the law in any case where human safety is at stake, and the highest degree known to the usage and practice of very careful, skillful, and diligent persons engaged in the business of carrying passengers by similar means and agencies. (3) It does not mean that every possibly or conceivable care and precaution which might increase, or even assure, the safety of the passenger, must be taken, but only such as are reasonably practicable under the circumstances; i. e., reasonably consistent with the practical operation of the carrier's business. * * *'

See also Cannon v. Louisville & N. R. Co., 252 Ala. 571, 42 So.2d 340; Louisville & N. R. Co. v. Bowen, 212 Ala. 690, 103 So. 872; Mosley v. Teche Lines, Inc., 232 Ala. 110, 166 So. 800; Pollard v. Williams, 238 Ala. 391, 191 So. 225; Montgomery City Lines v. Jones, 246 Ala. 291, 20 So.2d 599.

The evidence tended to prove that on the night of October 29, 1960, plaintiff was a passenger for hire in the taxicab of Mobile Cab and Baggage Company, Inc., when said taxicab was in a collision with another automobile owned by G. H. Elliott, and being driven at the time of the collision by Melvin Ikner as an agent of Elliott, acting within the line and scope of his authority, at or near the intersection of Fulton Road and Dublin Street, public streets in the City of Mobile, Alabama; that at the time of the collision, Melvin Ikner was a teenager, and there were six other young people in the Elliott car at the time of the accident; that the young people, including Elliott's son, were riding around in Elliott's car when Elliott's son asked Ikner to drive. Ikner did so and was driving when the collision occurred.

There is no conflict in the evidence as to the following facts: The collision occurred in the nighttime; Fulton Road runs, more or less, north and south; Dublin Street runs, more or less, east and west, and Dublin Street on the west side of Fulton Road is called Johnson Avenue; there is no traffic light at the intersection of Fulton Road and Dublin Street, but there is a street light there, and a stop sign at the intersection facing traffic going west on Dublin Street; the collision occurred after the Elliott car, driven by Ikner was nearly across Fulton Road and was entering Johnson Avenue, and it was hit on its right side by the taxicab driven by Watts.

Other evidence tended to prove that: Ikner did not stop before he entered Fulton Road; from a distance of 200 or 250 feet north of the intersection of Fulton Road and Dublin Street, a driver of an automobile going south on Fulton Road could see 'quite a distance' up Dublin Street to his left, the direction from which Ikner came; Watts did not see the Elliott car until it was right in front of him with its lights on; Watts applied his brakes, cut his wheels to the right; the taxicab struck the Elliott car near the rear door or right rear wheel; the car spun around and the taxicab came to rest at or near the curb at the southwest corner of the intersection of Fulton Road and Dublin Street, or Johnson Avenue; the Elliott car came to rest on the north curb of Johnson Avenue; there were 48 feet of skid marks left by the taxicab leading up to where the cars collided; the taxicab traveled some 15 feet after the impact; the taxicab was going 'quite fast.' 'I would say he was speeding, over 35 miles per hour.'

We have made no attempt to set out all the evidence. It is recognized that if the negligence of the driver of the taxicab proximately contributed to the accident, the Mobile Cab and Baggage Company would be liable, although negligence on the part of the driver of the Elliott car contributed to it. Chambers v. Cox, 222 Ala. 1, 130 So. 416; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; Decatur Transit Co. v. Jennings, 253 Ala. 322, 45 So.2d 13.

We think the evidence presents a jury question as to the Mobile Cab and Baggage Company under the rules outlined above on either one or two theories. First, the inattention of the driver of the taxicab. There is evidence from which the jury could infer that the driver of defendant's taxicab could have seen the Elliott car as it failed to stop at the intersection in time to have stopped or slowed down, and thereby have avoided the accident.

We also think that the evidence concerning the speed and control of the taxicab by the defendant's driver warranted the submission of the question of the negligence of that driver to the jury. The severity of the impact, the distance the taxicab traveled after the impact, the skid marks on the pavement made by the taxicab, the fact that the taxicab driver cut into the Elliott car instead of away from it, the speed of the taxicab, the distance of the Elliott car from the taxicab when first seen by the taxicab driver, and how far the taxicab traveled between the time the taxi driver saw the Elliott car and the collision.

All of this evidence, and the evidence tending to show inattention on the part of the driver of the taxicab, was ample to carry the case to the jury as to the negligence of the driver of the taxicab and the liability of the defendant, the Mobile Cab and Baggage Company. There is no merit in this assignment of error.

For the same reasons, there is no merit in assignment of error No. 1 which is predicated upon the trial court's refusal to give the affirmative charge without hypothesis for Mobile Cab and Baggage Company.

Mobile Cab and Baggage Company's assignment of error No. 6 is based on the giving of the following charge for defendants Elliott and Ikner.

'No. 7. The court charges the jury that the law requires the highest degree of care, skill and diligence, by those engaged in the carriage of passengers by taxicabs, known to careful, diligent and skillful persons engaged in such business.'

The complaint is that the trial court did not explain to the jury what was meant by the highest degree of care, skill and diligence. The argument is without merit because the charge does correctly state an abstract proposition of law, and the Mobile Cab and Baggage Company's remedy was to ask for an explanatory charge. Besides, the trial court explained to the jury the meaning of highest degree of care, skill and diligence in its oral charge.

Mobile Cab and Baggage Company's assignment of error No. 7 is based on the giving of Charge 9 for the defendants, Elliott and Ikner. Charge 9 reads:

'The court charges the jury that if you are reasonably satisfied from the evidence in this case that the driver for the defendant, Mobile Cab and Baggage Company, negligently operated the taxicab on Fulton Road and that such negligence was the sole proximate cause of any injuries suffered by the Plaintiff, then the court charges you that you must render a verdict in favor of Defendants, G. H. Elliott and Clinton Melvin Ikner.'

At most, all that can be said of the charge might be that it is abstract, argumentative, and misleading. The Mobile Cab and Baggage Company should...