Paschall v. Sharp

• Decision Date: 28 October 1926
• Docket Number: 7 Div. 660
• Parties: PASCHALL et al. v. SHARP.
• Court: Alabama Supreme Court

110 So. 387

215 Ala. 304

PASCHALL et al. v. SHARP.

7 Div. 660

Supreme Court of Alabama

October 28, 1926

Rehearing Denied Nov. 26, 1926

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action by Frank M. Sharp against Alice D. Paschall and another. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Alto V Lee and W.T. Murphree, both of Gadsden, for appellants.

Culli Hunt & Culli, of Gadsden, for appellee.

MILLER J.

This is an action by Frank M. Sharp against Alice D. Paschall and T E. Paschall, to recover damages for personal injuries received by him from a collision of an automobile with his buggy, on a public street in the city of Gadsden. The car was driven, at the time, by Sarah Paschall, daughter of the defendants, who was under 15 years of age. The buggy of plaintiff was demolished, his shoulder was dislocated, and he was otherwise bruised and permanently injured.

There were two counts in the complaint, numbered 1 and 4, that were submitted by the court to the jury. They returned a verdict in favor of the plaintiff, against the defendants, under count 4, and, from a judgment thereon by the court, the defendants prosecute this appeal and assign errors separately.

The court overruled demurrers of the defendants to count numbered 4. This count charges that on, to wit, 31st of December 1923, Sarah Paschall, a minor under 16 years of age, unaccompanied by an adult person, was running an automobile on the public streets of Gadsden, and negligently ran the automobile upon the plaintiff's buggy, in which he was riding on the street, and injured him and destroyed his buggy, and that "at said time and place the said Sarah Paschall was operating said automobile, unaccompanied by an adult person by and with the authority and permission of defendants, who with knowledge that said Sarah Paschall was under the age of 16 years negligently allowed her to operate said automobile at said time and place, unaccompanied by an adult person, she being at the time a member of defendants' family. Plaintiff avers that he suffered all of said injuries and damage by reason of and as a proximate consequence of the said negligence of defendants, combined with the said negligence of the said Sarah Paschall, all to the plaintiff's damage in the sum aforesaid."

Any person under 16 years of age is conclusively presumed incompetent to drive an automobile on the public highways of Alabama; and any person who allows such a vehicle to be operated by a person, a minor, under 16 years of age, upon the public highways of this state, unaccompanied by an adult person, is guilty of negligence as a matter of law. Section 22 of Acts 1911 (Gen.Acts 1911, p. 643); Beville v. Taylor, 202 Ala. 305, 80 So. 370; Rush v. McDonnell, 214 Ala. 47, 106 So. 175, headnote 4, 5; section 6268, Code of 1923.

This count charges that the negligence of the defendants in allowing their daughter, a minor, under 16 years of age, to drive this automobile upon this public highway, unaccompanied by an adult person, combined with their daughter's negligently running the automobile against or upon the buggy of plaintiff, in this street of the city of Gadsden, caused the injuries to him. This count states a good cause of action against the defendants, and the court did not err in overruling the demurrer to it. Rush v. McDonnell, 106 So. 175, 214 Ala. 47; Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L.R.A.1917F, 380; Beville v. Taylor, 202 Ala. 305, 80 So. 370; Parker v. Wilson, 179 Ala. 369, 60 So. 150, 43 L.R.A. (N.S.) 87.

Sarah was born on June 13, 1909, and was about 14 1/2 years of age at the time of the injury. It appears, from the evidence, that the mother of defendant directed her about dark on the 31st of December, 1923, to go and borrow some sugar. She got into this automobile, which belonged to her mother, went to town, and bought the sugar. The plaintiff was in his buggy driving on the right side of the street; Sarah was driving this automobile with no one therein with her, along the same street, in the same direction in which plaintiff was driving his horse in his buggy. It was near dark, and raining a little. Sarah ran the automobile into the rear of the buggy, broke it up, threw plaintiff out, and he was injured by his shoulder being dislocated and in other ways. Just before the collision, there was evidence that Sarah waved at some one passing on the sidewalk, and there was evidence to the contrary; and there was evidence that she did not see the buggy, or plaintiff, until the collision.

An X-ray picture of the shoulder was taken by Dr. Douglass after the physician, Dr. Faucett, in charge of the plaintiff, had put the shoulder in proper position. This X-ray picture was not in court, and its absence was not accounted for. Dr. Faucett, who saw this X-ray picture, was permitted, over objections by the defendants, to testify in answer to this question:

"What condition did it (the X-ray picture) show with reference to the shoulder?"

He answered:

"The X-ray, as I remember, was made after the shoulder had been put in position and did not show any broken bones. There is always, in a dislocation of a shoulder joint, some little parts torn off in the pulling of the bones apart, but that is not considered any actual fracture or break of the bone; it is what we call the laceration or tearing of the small places in tearing the ligaments that hold the bones together."

The defendants moved to exclude the answer, on grounds it was secondary evidence and the best evidence was the...