Pike Taxi Co. v. Patterson, 1 Div. 480
| Citation | 258 Ala. 508,63 So.2d 599 |
| Decision Date | 18 December 1952 |
| Docket Number | 1 Div. 480 |
| Parties | PIKE TAXI CO., Inc. v. PATTERSON, Adm'r. |
| Court | Supreme Court of Alabama |
Alex T. Howard, Mobile, for appellant.
D. R. Coley, Jr., Mobile, for appellee.
The following charges were given to plaintiff:
9: The Court charges the Jury that if you are reasonably satisfied from the evidence that at the time of the accident complained of, the Plaintiff's intestate was moving from the cab driver's right of the road across to the cab driver's left of the road, and the driver saw her or by the exercise of reasonable care should have seen her in time to have brought his automobile to a stop or avoided striking her, then his failure to do so was negligence.
12: The Court charges the Jury, that it was the duty of Defendant's driver, who was at the time of the injury complained of, driving the automobile, to keep a lookout for all persons liable to be run over no matter how they got on the street or what they were doing there and the failure to do so would be simple or wanton negligence according to the circumstances and if the injury to Geneva Jackson was proximately caused by the cab driver's failure to do so, and if you are reasonably satisfied from the evidence that at the time of the accident he was the agent, servant or employee of the Defendant, acting within the line and scope of his employment, you should find for the Plaintiff.
This action is by the personal representative of Geneva Jackson, deceased, authorized by § 123, Title 7, Code of 1940--the Homicide Act--against the appellant Pike Taxi Company, Inc., a corporation, for allegedly causing her death wrongfully.
The cause was submitted to the jury on 'count one' of the complaint after the wanton count, 'count two', was stricken or withdrawn by the plaintiff. Said count one avers that, 'On, towit, the 2nd day of February, 1950, an agent, servant or employee of the defendant, while acting within the line and scope of his employment as such so negligently operated an automobile at the intersection of Davis Avenue and Kennedy Street, both public streets in the City and County of Mobile, State of Alabama, that he caused the same to collide with and strike plaintiff's intestate, who was then and there a pedestrian at said intersection as a proximate consequence whereof, plaintiff's intestate was so severely injured that she died, all as the proximate consequence of the negligence of the agent, servant, or employee of the defendant while acting within the line and scope of his employment as such, hence this suit.'
To said count the defendant interposed the plea of not guilty and a special plea of contributory negligence. The trial resulted in a verdict and judgment for the plaintiff for five thousand dollars, from which defendant appealed, and seeks a reversal on five assignments of error on the record.
The appellant's first assignment is predicated on the refusal of the general affirmative charge in the defendant's favor, requested by it in writing. The evidence is without dispute that plaintiff's said intestate was struck by defendant's taxi cab, a Plymouth automobile, at the intersection of Davis Avenue and Kennedy Street while being driven by defendant's agent, Henry Johnson, Jr., within the line and scope of his employment, and as a proximate consequence, she was so injured that she died a few days later.
The testimony of the several witnesses as to what occurred on said intersection at the time of said injury; as to the direction in which said cab was moving when it struck plaintiff's intestate; as to who was there and witnessed the occurrence, and as to whether or not the cab driver as well as plaintiff's intestate were crossing the intersection against a red light or whether they had the right of way of a green light,--was in sharp conflict. This testimony presented a case for jury decision as to whether or not the driver of the taxi cab was guilty of negligence proximately causing said intestate's injury and death and also as to whether or not said intestate was guilty of contributory negligence proximately contributing to her own injury and death.
We are, therefore, of opinion that the court did not err in refusing said affirmative charge requested by the defendant in writing.
The second assignment of error is predicated on the ruling of the court in refusing to admit in evidence the report of the accident made by the police officers who investigated the accident to the Chief of Police of the City of Mobile, tending to show the direction in which said car was moving and also the direction in which the pedestrian, plaintiff's intestate, was moving at the time of the alleged injury. There is authority in the provisions of § 123, Title 36, Code of 1940, Pocket Part 1951, p. 172, Acts 1943, p. 549, § 7, for making such report. However, we find no provision in said act which requires a...
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Shanklin v. State
...1975. They are deemed hearsay and do not fall within the 'business records' exception to that exclusionary rule. Pike Taxi Co. v. Patterson, 258 Ala. 508, 63 So. 2d 599 (1952). Therefore, to be admissible, that portion of the report sought to be introduced must come within the ambit of some......
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Shanklin v. State
...1975. They are deemed hearsay and do not fall within the ‘business records' exception to that exclusionary rule. Pike Taxi Co. v. Patterson, 258 Ala. 508, 63 So.2d 599 (1952). Therefore, to be admissible, that portion of the report sought to be introduced must come within the ambit of some ......
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Harvey Ragland Co. v. Newton
...he (opposing counsel) will let us introduce the report.' The trial court properly sustained plaintiff's objections. Pike Taxicab Co. v. Patterson, 258 Ala. 508, 63 So.2d 599. Appellee contends that it constitutes a ground for a new trial if counsel, in disregard of the court's ruling that a......
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Reeves v. King
...1975. They are deemed hearsay and do not fall within the 'business records' exception to that exclusionary rule. Pike Taxi Co. v. Patterson, 258 Ala. 508, 63 So.2d 599 (1952). Therefore, to be admissible, that portion of the report sought to be introduced must come within the ambit of some ......