Mobile City Lines v. Alexander

• Decision Date: 10 April 1947
• Docket Number: 1 Div. 249.
• Citation: 249 Ala. 107,30 So.2d 4
• Court: Alabama Supreme Court
• Parties: MOBILE CITY LINES, Inc., v. ALEXANDER.

30 So.2d 4

249 Ala. 107

MOBILE CITY LINES, Inc., v. ALEXANDER.

1 Div. 249.

Supreme Court of Alabama

April 10, 1947

Johnston McCall & Johnston, of Mobile, for appellant.

Wm. G. Caffey, of Mobile, D. G Ewing, of Birmingham, and F. F. Windham, of Tuscaloosa, for appellee.

The following charges were refused to defendant:

'5. The court charges the jury that if you are reasonably satisfied from the evidence in this case that plaintiff's injuries were the proximate result of an accident without fault on the part of the defendant, its servants or agents your verdict should be for the defendant.'

'8. The court charges the jury that if you are reasonably satisfied from the evidence that the sole and proximate cause of the plaintiff's injuries and damage was her negligent failure to have her automobile under control, then your verdict should be for the defendant.'

'10. The court instructs the jury that it is your duty to consider all the testimony in this case and you are not authorized to render any verdict against the defendant if, after a fair consideration of all the testimony in the case, you are reasonably satisfied that the plaintiff was guilty of some wrongful act or omission to act on the occasion complained of which directly and proximately contributed to the injury complained of.'

LAWSON Justice.

The appellee, plaintiff below, brought suit against the appellant, claiming damages for personal injuries and for damage to her automobile resulting from a collision with one of defendant's busses.

The complaint contained two counts, the first charging simple negligence, the second charging wantonness. Demurrers to each count of the complaint were overruled and thereupon defendant interposed the plea of the general issue to the complaint and two pleas of contributory negligence to Count 1, the simple negligence count. Plaintiff's demurrer to the pleas of contributory negligence was overruled.

There were verdict and judgment for plaintiff in the sum of $3,000. Defendant's motion for a new trial having been overruled it has appealed to this court.

One of the questions presented on this appeal is the refusal of the trial court to give at the request of defendant the affirmative charge as to the wanton count.

The collision occurred about 12:30 A.M. on the morning of April 7, 1944, at or near the intersection of Savannah and Broad Streets in the city of Mobile. Plaintiff was alone in her 1936 model Ford coupe, traveling in a western direction on Savannah Street, and defendant's bus was proceeding north on Broad Street, which is a main thoroughfare between the northern and southern sections of the city. There was a stop sign at the northeast corner of the intersection of these two streets, erected in accordance with a municipal ordinance which required all traffic proceeding westward on Savannah Street to stop before entering the intersection. The northeast and southeast corners of this intersection were described as being 'open corners.'

Plaintiff was the only witness for herself as to how the collision occurred. Her story was substantially this: That she had driven a friend to the bus station in Mobile and was returning to her home, traveling in a western direction by way of Savannah Street; that when she reached the intersection she brought her car to a complete stop, but did not skid her tires in so doing; that she looked in both directions on Broad Street but did not see the bus; that she entered the intersection slowly, turned to her left (south) and then for the first time saw the bus, which was moving in a northern direction at a high rate of speed, on the wrong side of Broad Street (west side); that the defendant's bus hit her car 'very shortly' after she saw it and when her car was on the west side of Broad Street; that the collision occurred in spite of her efforts to avoid it by turning her car to the right and by applying the brakes on her car to such an extent as to cause her car to skid. Plaintiff was rendered unconscious and could not give an account of any of the events occurring immediately after the impact.

The evidence for the defendant tends to show that the bus was en route from Brookley Field to Mobile, traveling in a northern direction on Broad Street; that after discharging two passengers at an intersection two blocks south of the scene of the collision, the bus continued north on Broad Street about five feet from the east curb of said street at a speed of approximately twenty-five miles an hour; that plaintiff's car entered the intersection at a high rate of speed and ran into the forward part of the right side of the bus. The driver of the bus testified that as the bus was proceeding north on Broad Street he was keeping a lookout ahead as well as observing the side streets; that he did not blow the whistle on the bus midway of the block nor did he ever blow the whistle after seeing the plaintiff's car inasmuch as the collision occurred almost the instant he saw her car. According to this witness, he observed no reflection from the lights on plaintiff's car and did not see it until it was practically in the intersection. He further testified that after seeing plaintiff's car he did not have time to put on the brakes or do anything to avoid the collision. According to his testimony, the force of the impact did not force him from the driver's seat, but did knock his foot off the brake pedal and his hands from the steering wheel, as the result of which he lost complete control of the bus and it proceeded diagonally across Broad Street and ran into a fish market or shop located on the west side of that street north of the intersection. Only one other occurrence witness testified for the defendant. He was Grover C. Morrisette, a passenger on the bus, and his testimony is in most respects similar to that of the bus driver. However, he did state that the bus driver blew a horn about midway of the block south of the scene of the collision and that immediately after the collision he saw the driver 'standing up holding to the steering wheel.'

The evidence shows that the fish shop was the second building on the west side of Broad Street north of the intersection. An Atlantic & Pacific Co. store was on the corner. It was estimated that the front end of the bus was from fifty to sixty feet from the north line of Savannah Street when it stopped in the fish shop. The evidence tends to show that the fish shop, which was a frame building, was practically demolished by the bus.

After the collision, plaintiff was found lying in Broad Street at a point estimated as being from four to nine feet from the east curb and from twenty to forty feet north of Savannah Street. Her car was found approximately in the middle of Broad Street at a point variously estimated as being from sixty to 100 feet north of Savannah Street. The ignition was still on but the motor was not running.

Photographs of plaintiff's car and of defendant's bus were introduced in evidence. Police officers of the city of Mobile testified that they investigated the scene of the collision a short time after it happened and found skid marks fifteen to twenty feet in length leading from Savannah Street into Broad Street and that they saw marks which indicated that the collision occurred 'in the middle of the intersection, about seven feet from the curbing.'

Considering the whole evidence, the question of wantonness was one for the jury. If plaintiff's evidence is to be believed, the collision occurred at a place where plaintiff had a right to be and when defendant's bus was traveling at a high rate of speed on the wrong side of the street. There was evidence that the bus driver had blown a horn midway of the block. The jury could have found from the fact that the horn was blown that the bus driver was aware of plaintiff's presence on the west side of the street, but nevertheless continued to drive the bus on that side at a high rate of speed, thereby hitting plaintiff's car.

A decision to the effect that on such tendency of evidence the trial court was not authorized to exclude the issue of wantonness from the jury is that in the case of Daniel v. Motes, 228 Ala. 454, 153 So. 727, where it is said:

'Stating the rule applicable to a case of this character, we hold that if A drives his car down the center of the road, and meets B, driving his car well on his side of the road, and A, in violation of the law of the road, refuses to turn to the right, and keeps straight ahead with a view of forcing B still further out on his side for fear of a collision, but B continues in the zone he has the right to be, and thus a collision becomes so imminent that it is too late for A to turn to the right and avoid it, A may be guilty of a wanton wrong. Though he may not intend a collision, if he knowingly and wrongfully brings on a condition of danger, taking a chance on the other fellow giving way to his wrongful course, until too late for preventive effort, such conduct has all the evidence of a wanton act.' 228 Ala. at page 455, 153 So. at page 728.

Principal contention of the appellant seems to be that its motion for a new trial should have been granted on the ground that the verdict was contrary to the great weight of the evidence.

It is of course, the law that where the great weight of evidence is against the verdict and so decided that the court is convinced that it is wrong and unjust, a new trial should be granted. Byars v. Hollimon, 228 Ala. 494, 153 So. 748; Carraway v. Graham, 218 Ala. 453, 118 So. 807. It is also well established that this court has not renounced its duty nor neglected its power to review the verdict of the jury and the conclusions of the trial judge on questions in general, where, in our opinion, after making all...