Parkinson v. Hudson

• Citation: 265 Ala. 4,88 So.2d 793
• Decision Date: 21 June 1956
• Docket Number: 6 Div. 994
• Parties: Merle A. PARKINSON v. David James HUDSON.
• Court: Supreme Court of Alabama

Page 793

88 So.2d 793

265 Ala. 4

Merle A. PARKINSON v. David James HUDSON.

6 Div. 994.

Supreme Court of Alabama.

June 21, 1956.

Rehearing Denied Aug. 2, 1956.

Geo. S. Brown and Robt. W. Smith, Birmingham, for appellant.

Huie, Fernambucq & Stewart, Birmingham, for appellee.

MERRILL, Justice.

Appellee instituted this action in the Circuit Court of Jefferson County under the provisions of the Employer's Liability Act, Title 26, § 326, Code 1940, seeking to recover damages for personal injuries. The complaint, in substance, charged that appellant furnished a defective truck to his employee, the appellee, and that appellee was injured thereby. To this complaint, as amended, appellant filed several pleas. Among them were (plea 1) the general issue, (plea 3) contributory negligence, assumption of risk and that it was the duty of the appellee to keep the truck in repair, (plea 7) contributory negligence and that appellee had the duty of keeping the truck in repair, (plea 8) that appellee was the agent of appellant entrusted with the duty of seeing that the truck was kept in proper condition and that he undertook to perform that duty, (plea 9) assumption of risk and same duty as plea 8.

The jury returned a verdict for $4,000 in favor of the appellee. From the judgment rendered pursuant to said verdict and the judgment overruling his motion for a new trial, appellant prosecutes this appeal.

The evidence discloses that appellee was employed by appellant in October, 1953, as a truck driver and a general laborer. He was not hired as a mechanic and did not purport to be able to perform repairs on the truck he was employed to drive. Appellant testified that appellee was given complete charge of the truck and was instructed that whenever any repairs were needed he was to take it to a designated garage where a mechanic would make the necessary repairs and that he had told appellee that it was appellee's responsibility to keep the truck repaired. On the other hand, there was also evidence to the effect that appellee was not given authority to effectuate any major repairs to the truck, and that while he was authorized to purchase gasoline, oil, etc., and charge same to appellant, he always conferred with appellant to receive instructions whenever any repairs of major proportion were necessitated.

Several assignments of error relate to the action of the trial court in refusing to give the general affirmative charge, both with and without hypothesis, for the appellant. It is contended the undisputed evidence showed that it was the duty and responsibility of the appellee to keep the truck in a proper state of repair. In view of this contention we detail other tendencies of the evidence of the appellee.

On January 19, 1954, appellee was instructed by appellant to make a trip to Georgia. He was to carry a load of coke to his destination and bring back a load of granite monuments. Appellee testified that shortly prior to his leaving on this trip, he and appellant had a discussion about the fact that the front wheels of the truck shimmied. In that discussion appellee stated that he thought the truck needed 'bushings or something'. He said Appellant stated that he thought the shimmying was caused by a worn tire and suggested that a new tire be put on the truck. He further stated that if the new tire did not eliminate the shimmying, then after appellee returned from the trip they would have it repaired. A new tire was put on the truck and about 8:00 P.M. appellee left the city of Birmingham for Georgia. The wheels did not shimmy while in Birmingham but at some point after getting on the highway No. 78 the shimmying began again. Appellee continued on his journey and at a point some 100 miles from Birmingham, near Fruithurst in Cleburne County, he ran into a 'fog pocket', applied the brakes, and, as he testified, 'it seemed like they locked and pulled me off the road'. The truck overturned and appellee suffered a severe injury to his hip. As can be noted from that portion of the evidence hereinabove set out, the evidence in regard to the duty and responsibility of the appellee is in conflict. The affirmative charge for appellant was properly refused. Mutual Life Ins. Co. v. Mandelbaum, 207 Ala. 234, 92 So. 440, 29 A.L.R. 649. 18A Alabama Digest, Trial, k143.

Appellant further argues in his brief that he 'was entitled to the general affirmative charge without hypothesis, his case being made out by the testimony of his opponent'.

We have noted that some of the testimony of appellee was favorable to the defenses relied on by appellant; however, other portions of his testimony were favorable to himself.

A conflicting tendency of the evidence making a question for the jury may be presented by the direct and cross-examination of one witness. Ten Ball Novelty &amp Mfg. Co. v. Allen, 255 Ala. 418, 51 So.2d 690; Alabama Power Co. v. Buck, 250 Ala. 618, 35 So.2d 355; St. Paul Fire & Marine Ins. Co. v. Crump, 231 Ala. 127, 163 So. 651; Jones v. Bell, 201 Ala. 336, 77 So. 998. In the case of Alabama Power Co. v. Buck, supra [250 Ala. 618, 35 So.2d 356], it was stated:

'In determining the propriety of a general affirmative charge when requested by the defendant, the evidence favorable to the plaintiff must be accepted as true. New Morgan County Building & Loan Ass'n v. Plemmons, 210 Ala. 286, 98 So. 12; Southern R. Co. v. Randall, 212 Ala. 41, 101 So. 661. And even if there was a conflict in the testimony of the plaintiff given on his direct examination and that given by him on cross-examination, this fact would not warrant the court in disregarding the testimony of the plaintiff. The jury had the right to determine which statement it would believe. Alabama Power Co. v. Byars, 236 Ala. 79, 181 So. 270; Spurlock v. J. T. Knight & Son, 244 Ala. 364, 13 So.2d 396.'

Appellant further contends that the case was allowed to go to the jury on a scintilla of evidence and that the lower court erred, on appellant's motion for a new trial, in refusing to set aside the verdict as being against the great weight of the evidence. In support of this contention appellant relies heavily on a statement by the trial judge that '* * * my idea is there is a scintilla.' This statement was made by the judge at the conclusion of argument that appellant was entitled to the general affirmative charge.

Of course, the fact that the trial judge made the statement is not evidence that there is only a scintilla of evidence. We do not think the trial judge meant to intimate by this...