Purity Ice Co. v. Triplett

• Decision Date: 13 March 1952
• Docket Number: 6 Div. 232
• Citation: 57 So.2d 540,257 Ala. 116
• Parties: PURITY ICE CO., Inc. v. TRIPLETT.
• Court: Alabama Supreme Court

Page 540

57 So.2d 540

257 Ala. 116

PURITY ICE CO., Inc. v. TRIPLETT.

6 Div. 232.

Supreme Court of Alabama.

March 13, 1952.

Geo. W. Yancey, Bibb Allen and London & Yancey, all of Birmingham, for appellant.

Gibson & Gibson and C. W. Bates, all of Birmingham, for appellee.

STAKELY, Justice.

This action grew out of an accident which occurred on December 10, 1950, in Birmingham, Alabama, at the intersection of 5th Avenue North and 33rd Street. The suit was brought by Mrs. Elsie Triplett (appellee) against Purity Ice Company, Inc. (appellant), for injuries alleged to have been received by her while she was riding in a 1949 Ford automobile driven by Claud L. Ellard, the owner of the Ford car. The complaint consisted of two counts, one a count in simple negligence and the other a count based on wanton misconduct. To both of these counts the defendant pleaded the general issue in short by consent. The court allowed the case to go to the jury on both counts with the result that the jury rendered a verdict in the amount of $10,000. There was a motion for a new trial which the court overruled.

Two questions are presented on this appeal, error being predicated (1) on the action of the court in refusing to give the affirmative charge for the defendant on the wanton count and (2) on the action of the court in overruling the motion for a new trial, it being the insistence that the verdict was excessive.

I. 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. Alabama Power Company v. Buck, 250 Ala. 618, 35 So.2d 355. Accordingly tendencies of the evidence most favorable to the plaintiff will be stated, much of which evidence is without dispute.

On December 10, 1949 at about 4:20 P.M. Mrs. Elsie Triplett (appellee) was riding in a 1949 Ford automobile driven by Claud L. Ellard, the owner, in the City of Birmingham, Alabama. This car headed east on 5th Avenue North had stopped for a traffic light at the intersection of 5th Avenue North and 33rd Street and was in the right center line of traffic with two other automobiles also stopped for the traffic light standing in front of it. The light was of the type which permits vehicles in the extreme right line to make right turns, while those wishing to go straight through were halted. There was considerable traffic at that point. The car in which the plaintiff was riding had been stopped for several seconds, the time being estimated at from two to five seconds. It was headed upgrade and Claud L. Ellard, the driver, was holding it with his foot brake. The nearest automobile in the same line was eight or ten feet ahead of the Ford. The Ford had been in the same lane of traffic for several blocks before it reached the traffic light. Prior to stopping it was going at about twenty miles per hour, and the driver braked it to a halt in about two car lengths when he saw the light turn red and the car in front of him coming to a stop. The Ford was equipped with red warning lights on the rear, which were lighted and remained lighted while the brakes were applied.

A few seconds after the Ford stopped it was struck a blow in the rear by the ice truck of Purity Ice Company, Inc. (appellant). At the time of the accident the street which was surfaced with asphalt was wet and it was raining. The truck overrode the rear bumper of the Ford and hit the rear of its body. The impact threw Mrs. Elsie Triplett and Claud L. Ellard, the occupants of the Ford, backward with such force that it broke off the back rest portion of the front seats and then both occupants were thrown forward. They were both dazed but not thrown out of the car. Mrs. Elsie Triplett was driven from the scene in the same car and assisted into her house. The trunk and back end of the Ford were crushed. The rear seat was pushed under the front seat and the backs of the two front seats were broken off by the impact.

The truck of the defendant was a 1 1/2 ton Chevrolet truck and loaded with 600 or 700 lbs. of ice. Its driver Henry May was experienced in driving the truck and he was conscious that the wet street increased the distance required to stop the truck. He was looking ahead and had seen the traffic light turn red against him while still nearly a block from the point of collision. The truck was within 3 or 4 feet of the automobile standing before him before he applied his brakes or made any effort to slacken speed. He testified that he was driving at 20 miles per hour at the point of the accident but also stated in answer to interrogatories that he was driving 25 miles per hour at a point 100 feet west of the point of collision. He testified that if the ground was not wet he could stop the truck in 4 feet, but that he did not stop the truck in 4 feet because it skidded. According to him it skidded about 3 or 4 feet before he hit the car in which the plaintiff was riding. The force of the impact was great enough to knock the car in which the plaintiff was riding upgrade 15 feet with its brakes on, with the effect on the car as stated above.

We feel satisfied that from this evidence the jury had the right to infer that the driver of the ice truck, conscious of the conditions of the traffic and weather prevailing and that such conditions called for caution to avoid a collision and conscious that the Ford was standing in his path halted by a red traffic signal, did nothing to reduce the speed of his heavy truck, but on the contrary, looking ahead, conscious that his course would probably result in disaster, with reckless indifference to the probable consequences, drove it within 3 or 4 feet of the motionless Ford car without warning or effort to avert the collision and struck it a smashing blow. Birmingham Electric Co. v. Graddick, 35 Ala.App. 484, 49 So.2d 318, certiorari denied 254 Ala. 556, 49 So.2d 320; Hood & Wheeler Furniture Co. v. Royal, 200 Ala. 607, 76 So. 965; Sheffield Co. v. Harris, 183 Ala. 357, 61 So. 88; Schmidt v. Mobile Light & R. Co., 204 Ala. 694, 87 So. 181; J. C. Byram & Co. v. Livingston, 225 Ala. 442, 143 So. 461; Granberry v. Barter, 209 Ala. 257, 96 So. 148; Louisville & N. R. R. Co. v. Brown, 121 Ala. 221, 25 So. 609. The request for the affirmative charge on the wanton count was properly refused.

II. At the time of the accident Mrs. Elsie Triplett stated to a policeman...