Mobile Cab & Baggage Co. v. Busby, 1 Div. 57

CourtSupreme Court of Alabama
Writing for the CourtLIVINGSTON
Citation277 Ala. 292,169 So.2d 314
Docket Number1 Div. 57
Decision Date19 November 1964
PartiesMOBILE CAB & BAGGAGE CO., Inc., et al. v. Joyce BUSBY.

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.

[277 Ala. 294]

Page 316

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, [277 Ala. 295] 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

Page 317

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...

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23 practice notes
  • Maslankowski v. Beam, 3 Div. 466
    • United States
    • Supreme Court of Alabama
    • March 30, 1972
    ...in form, it does not constitute reversible error. Hale v. Cox, 222 Ala. 136, 131 So. 233 (1930); Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 169 So.2d 314 Appellant further complains that the trial court erred in denying his motion for new trial on the ground the verdict of the jury an......
  • Lankford v. Mong, 7 Div. 707
    • United States
    • Supreme Court of Alabama
    • September 12, 1968
    ...Infirmary v. Camp, supra; W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375; Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 169 So.2d 314; Duke v. Gaines, 224 Ala. 519, 140 So. 600; Chesser v. Williams, 268 Ala. 57, 104 So.2d Wantonness is the conscious doing of so......
  • Western Ry. of Ala. v. Brown, 5 Div. 793
    • United States
    • Supreme Court of Alabama
    • February 23, 1967
    ...the court will not be put in error for refusing defendant's motion to exclude all plaintiff's evidence; Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 297, 169 So.2d 314; Atlantic Coast Line R. Co. v. French, 261 Ala. 306, 309, 74 So.2d 266; Riley v. Riley, 257 Ala. 636, 638, 60 So.2d 432......
  • Commercial Union Fire Ins. Co. of New York v. Parvin, 6 Div. 54
    • United States
    • Supreme Court of Alabama
    • June 30, 1966
    ...more probable. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375, and cases cited; Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 169 So.2d 314; South Highlands Infirmary v. Camp (Ala.) 180 So.2d The appellant's evidence showed that Parvin had made only five payments pri......
  • Request a trial to view additional results
23 cases
  • Maslankowski v. Beam, 3 Div. 466
    • United States
    • Supreme Court of Alabama
    • March 30, 1972
    ...in form, it does not constitute reversible error. Hale v. Cox, 222 Ala. 136, 131 So. 233 (1930); Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 169 So.2d 314 Appellant further complains that the trial court erred in denying his motion for new trial on the ground the verdict of the jury an......
  • Lankford v. Mong, 7 Div. 707
    • United States
    • Supreme Court of Alabama
    • September 12, 1968
    ...Infirmary v. Camp, supra; W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375; Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 169 So.2d 314; Duke v. Gaines, 224 Ala. 519, 140 So. 600; Chesser v. Williams, 268 Ala. 57, 104 So.2d Wantonness is the conscious doing of so......
  • Western Ry. of Ala. v. Brown, 5 Div. 793
    • United States
    • Supreme Court of Alabama
    • February 23, 1967
    ...the court will not be put in error for refusing defendant's motion to exclude all plaintiff's evidence; Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 297, 169 So.2d 314; Atlantic Coast Line R. Co. v. French, 261 Ala. 306, 309, 74 So.2d 266; Riley v. Riley, 257 Ala. 636, 638, 60 So.2d 432......
  • Commercial Union Fire Ins. Co. of New York v. Parvin, 6 Div. 54
    • United States
    • Supreme Court of Alabama
    • June 30, 1966
    ...more probable. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375, and cases cited; Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 169 So.2d 314; South Highlands Infirmary v. Camp (Ala.) 180 So.2d The appellant's evidence showed that Parvin had made only five payments pri......
  • Request a trial to view additional results

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