Patrick v. Mitchell
Decision Date | 19 February 1942 |
Docket Number | 8 Div. 131. |
Citation | 6 So.2d 889,242 Ala. 414 |
Parties | PATRICK et al. v. MITCHELL. |
Court | Alabama Supreme Court |
Rehearing Denied March 12, 1942.
The following charge was given for plaintiff:
This charge was refused to defendants:
Proctor & Snodgrass, of Scottsboro, for appellants.
H. T. Foster, of Scottsboro, for appellee.
A truck driven by defendant Bradford ran over and killed plaintiff's child, eleven years of age, on the street of Section, Alabama. It was Saturday with a "good crowd" of people in "town." Cars were parked on each side of the street, and the truck driven by Bradford was not meeting or passing any other vehicle. There was no cab on the truck and the place of the accident was clearly visible from the direction the truck was traveling over a quarter of a mile and nothing to obstruct the view.
The proof was sufficient for the jury to infer the truck was being operated at the time by Bradford as the agent of defendant Patrick and in the line and scope of his employment.
The child, with another, was playing in and out of parked cars and clearly ran into the side of the truck, was struck down and run over by the rear wheels. There was evidence to show the truck was over the center line of the highway and too far to the left and defendants argue this fact alone would not suffice for submission of the question of negligence to the jury. But we find no occasion for a discussion of that line of argument. This for the reason we are persuaded the jury could very reasonably infer the driver guilty of negligence for failure to give warning of his approach. 42 C.J. 915-920.
The father testified the truck driver, Bradford, told him "he probably could have avoided the accident if he had blown his horn or stayed on his side of the road". The truck was traveling at a speed not exceeding 15 miles per hour.
The testimony of the driver, defendant Bradford, indicates clearly that he had ample warning he was approaching a place where children were playing on both sides of the street, and yet he gave no warning signal. Upon this point he says:
The jury might well infer that reasonable care required some warning signal of approach be given, and that had such been done the accident might have been avoided. The case of Watson v. Ingalls, 218 Ala. 537, 119 So. 667, 669, is here much in point. The affirmative charge was properly refused.
Defendants interposed pleas of contributory negligence and argue it was reversible error for the court to have given for plaintiff charge "P" which in effect eliminated such issue from the case. As previously observed the boy was eleven years of age and the father testified he was an average child for his age and in the 5th grade at school.
The following observation in Watson v. Ingalls, supra, is applicable here and suffices as an answer to the argument in the instant case:
As to defendants' refused charge "10" it is sufficient to say the substance of this charge was embraced in charge "7" given for defendants.
The verdict was only for $250 and defendants argue this as a conclusive fact the damages awarded were compensatory and not punitive. Of course, it is settled that all damages allowed in cases of this character are punitive and should be measured by the quality of the wrongful act, and the degree of culpability involved. Jack Cole, Inc., v. Walker, 240 Ala. 683, 200 So. 768. And the jury may have, in their discretion, determined upon the above amount in consideration of all the facts and circumstances as to the quality of the wrongful act, and the degree of culpability involved. In any event it is clear enough these defendants are in no position to complain the recovery against them was insufficient in amount. Louisville & N. R. Co. v. Street, 164 Ala. 155, 51 So. 306, 20 Ann. Cas. 877.
Defendants' refused charge "2"...
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