Moore v. Cruit

• Decision Date: 29 June 1939
• Docket Number: 3 Div. 299.
• Citation: 238 Ala. 414,191 So. 252
• Parties: MOORE v. CRUIT.
• Court: Alabama Supreme Court

191 So. 252

238 Ala. 414

MOORE v. CRUIT.

3 Div. 299.

Supreme Court of Alabama

June 29, 1939

Rehearing Denied Oct. 12, 1939.

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

Action for damages for personal injuries by B. F. Cruit against Charles Bates Moore. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals under Code 1923, § 7326.

Affirmed.

An assignment of error not insisted upon in original brief is waived and not to be renewed by being urged in a supplemental brief subsequent to submission of cause on appeal.

Counts 1 and 3 of the complaint are as follows:

"1. The plaintiff claims of the defendant the sum of Five Thousand ($5,000.00) Dollars as damages for that heretofore on to wit, the 7th day of December, 1934, the plaintiff was riding as a guest in an automobile being driven by one Irving Vickery upon a public highway in Escambia County Alabama, leading from McCullough to Atmore; that while going in a Southerly direction toward Atmore, and when the automobile in which he was riding as aforesaid entered a point on said highway near the home of W. J. Moore, a school bus of the defendant which was then and there being operated by Houston Malone, an agent, employee or servant of the defendant, who was then and there acting within the scope of his employment and the line of his duty, was negligently driven into the highway from a settlement road leading into said highway from a westerly direction, at a time when the automobile in which plaintiff was riding was so near thereto as to make it impossible for the driver of the automobile in which the plaintiff was riding to avoid a collision with said school bus. The plaintiff avers that as a proximate result of the negligence of the defendant's said agent or employee as aforesaid, the automobile in which the plaintiff was riding did collide with said school bus, and with such force and violence as to cause plaintiff to be rendered unconscious, breaking his nose and one rib, knocking out four of his teeth, severely injuring his neck, spine, left cheek bone and left eye, and causing him serious and permanent internal injuries. The plaintiff avers that he has been made to suffer great pain and anguish as a proximate result of the negligence of defendant's agent as aforesaid, and will continue to suffer great pain and anguish; that he was caused to lose much time from his work and has been rendered permanently less able to earn a livelihood; that he has been put to great expense in the matter of doctors' bills and medicine in an effort to cure his said injuries, all to his damage in the sum aforesaid; wherefore this suit.

"3. The plaintiff claims of the defendant the sum of Five Thousand ($5,000.00) Dollars as damages for that heretofore on to wit, the 7th day of December, 1934, an agent, servant or employee of the defendant while acting within the line and scope of his employment by the defendant negligently ran or permitted an automobile, namely a school bus, to run upon or against an automobile, in which plaintiff was riding as an invited guest, on or along a public highway in Escambia County, Alabama, namely the highway leading from McCullough, Alabama, to Atmore, Alabama, and as a proximate consequence of said negligence of said agent, servant, or employee of the defendant, the plaintiff was rendered unconscious, his nose and one rib were broken, four of his teeth were knocked out, his neck, spine, face, and body were bruised and injured, and he was caused to lose much time from his work, and put to great expense in employing doctors and purchasing medicines in an effort to cure his injuries; and he has been caused to suffer great physical pain and inconvenience, all to the damage of the plaintiff in the sum of five Thousand ($5,000.00) Dollars, wherefore this suit."

The following charges were given at plaintiff's request:

"9. The Court charges the jury that the plaintiff is not chargeable with any negligence on the part of Irving Vickery in whose automobile plaintiff was riding."

"10. The Court charges the jury that if you are reasonably satisfied from the evidence that plaintiff's injuries were the proximate result of the concurring negligence of the driver of the defendant's school bus and of the driver of the automobile in which plaintiff was riding as a guest, then your verdict should be for the plaintiff."

"12. The court charges the jury that if you are reasonably satisfied from the evidence that the plaintiff was a guest in the automobile being driven by Irving Vickery, any negligence on the part of said Irving Vickery could not be imputed to the plaintiff in the absence of authority in plaintiff to control or direct the automobile's movements."

"13. The court charges the jury that in the absence of facts suggesting to the plaintiff as a reasonably prudent man the necessity to keep watch, he was under no duty to protest to the driver of the car in which he was riding as to excessive speed, and his failure to so protest would not constitute negligence."

"14. The court charges the jury that unless you are reasonably satisfied from the evidence that the plaintiff knew of some circumstance making it dangerous for him to ride in the automobile of Irving Vickery at the time of the injuries complained of, and with such knowledge neglected to take the precautions which a reasonably prudent man would have taken for his own safety, then plaintiff would not be guilty of contributory negligence so as to bar his recovery."

The following charge was refused to defendant:

"2. The Court charges the jury that the driver of the school bus, in approaching and entering the junction of the two roads where the collision took place, had a right to assume that the driver of another motor vehicle would observe the laws and the rules of the road in approaching said junction point on a different and connecting road."

H. C. Rankin, of Brewton, for appellant.

McMillan, Caffey & McMillan, of Brewton, for appellee.

GARDNER Justice.

Plaintiff was riding as a guest in a car driven by one Vickery, which collided in the public road with a school bus operated by one Malone, as the agent of defendant Moore, and acting in the line and scope of his duties. There was judgment for plaintiff, and defendant appeals.

The demurrer to count 1 was properly overruled (McQueen v. Jones, 226 Ala. 4, 145 So. 440; Ruffin Coal & Transfer Co. v. Rich, 214 Ala. 622, 108 So. 600), and, likewise, as to count 3. Shelby Iron Co. v. Morrow, 209 Ala. 116, 95 So. 370.

It was plaintiff's theory that the car in which he was riding as a guest was being driven in a southerly direction, with due care and at a speed not exceeding 40 miles per hour on the main highway leading from Atmore to McCullough, when defendant's bus suddenly ran into the center of the highway from an intersecting road, known as the Ewing road, resulting in the collision of the two vehicles, and inflicting injuries upon plaintiff.

The Ewing road intersects, but does not cross the Atmore highway, the weight of the evidence being to the effect it intersects at an angle of forty-five degrees. At the point of intersection there is a fence and hedgerow, which obstructs the view along the Atmore highway.

Defendant insists that the bus was brought to a stop at the point of intersection, and that although the view is obstructed at the point of intersection, yet back some 25 or 30 feet one could see, and that he did look and saw no approaching vehicle.

The intersecting Ewing road, referred to in the complaint as a settlement road, was also a public road. Defendant attaches some significance to the reference to the Ewing road as a settlement road, with particular reference to General Acts of 1927, page 373, § 65(a), as to the rule of the road, and as construed in Echols v. Vinson, 220 Ala. 229, 124 So. 510; White Dairy Co. v. Sims, 230 Ala. 561, 161 So. 812, and Hawkins v. Barber, 231 Ala. 53, 163 So. 608.

But it would seem that the mere designation of a road as a settlement road does not necessarily mean it is not also a public road, as distinguished from a private road. Cozard v. Kanawaha Hardwood Co., 139 N.C. 283, 51 S.E. 932, 1 L.R.A.,N.S., 969, 111 Am.St.Rep. 779, cited in 50 Corpus Juris 378. And we have held that it is the character, rather than the quantum of use, that controls, and that, although the chief users be a few families having a special need therefor, this does not necessarily stamp it as a private way. Ritter v. Hewitt, 236 Ala. 205, 181 So. 289.

A careful reading of the record is persuasive that plaintiff's proof does tend to show that the bus was run into the center of the road, and was not stopped at its edge as defendant contends, at least, so the jury was authorized to find. And, if the rule of the road as to the approach of vehicles to an intersection, which gives the right of way to the one on the...