Ray v. Terry

• Decision Date: 10 December 1946
• Docket Number: 4 Div. 953.
• Citation: 28 So.2d 916,32 Ala.App. 582
• Parties: RAY v. TERRY et al.
• Court: Alabama Court of Appeals

28 So.2d 916

32 Ala.App. 582

RAY v. TERRY et al.

4 Div. 953.

Alabama Court of Appeals

December 10, 1946

Rehearing Denied Jan. 7, 1947.

Martin & Jackson, of Dothan, for appellant.

Lee & Lee, of Dothan, for appellees.

Count 2 of the complaint alleges that on December 16, 1944, during the period between one-half hour after sunset and one-half hour before sunrise, defendant negligently and unlawfully parked or stopped an automobile which she was then and there driving on the Dothan-Cottonwood highway, a public highway and thoroughfare in Houston County, Alabama, about 1 1/2 or two miles north of the corporate limits of the town of Cottonwood, Alabama, and in front of the home of Fred Snell and as a direct and proximate result thereof, plaintiff's automobile was caused to run into, upon or against the automobile of the defendant, and as a direct and proximate result thereof, plaintiff's automobile was damaged in the manner described. It is averred that such injuries and damages were caused by defendant's negligence and her unlawful

act in parking her said automobile upon said highway as aforesaid.

CARR Judge.

This case was submitted to the jury in the court below on Court 2 of the complaint, whereby a recovery was sought against the defendant for damages which allegedly were caused by the negligent act of the defendant in parking or stopping her automobile on a highway.

The sufficiency of the complaint was not tested by demurrers. A general denial was interposed, and in this manner the issues were framed. The trial resulted in a verdict in favor of the plaintiff, and from this judgment the defendant prosecutes this appeal.

All assignments of error are grouped in argument in brief of appellant's counsel. Under such treatment, if one of the assignments is without merit, a consideration of the others may be pretermitted. Alabama Co. v. Norwood, 211 Ala. 385, 100 So. 479; Norwood Hospital, Inc. v. Howton Ala.App., 26 So.2d 427.

The major portion of appellant's brief is devoted to cogent insistence that the affirmative charge was due the defendant. We will rest this opinion on a determination of this question.

Out of deference to able counsel we do not hesitate to here observe that the reasons we shall give to demonstrate our conclusions on this prime query will also serve to show that the other assignments are without merit.

This inclusion is without reference to assignments numbered 4 and 5. These present the propriety of the ruling of the trial court in denying the motion for a new trial, and with reference to these we will not charge error.

Appellee's evidence tended to disclose the following set of circumstances: Appellee's son was driving the former's automobile along a paved highway about nine o'clock at night. There were four other male persons in the car. As they traveled northward, at a moderate rate of speed, and had reached a vantage point of about 200 yards, they first observed the lights from appellant's car, which was headed in a southern direction. When they had proceeded about 50 yards, the driver saw that the car ahead was stopped, but its exact location on the highway could not at that time be determined, primarily because the beams from its head and spot lights were extended at an angle to the direction of the road. When appellee's car came within 15 or 20 yards of the parked car, the glaring light rays from the latter blinded the driver of the former. He steered further to the right, off the paved surface of the road, and the collision occurred. It is undisputed in the evidence that appellant's car was parked on the left side, looking south, and was...