Riddle v. Dorough

• Decision Date: 02 June 1966
• Docket Number: 1 Div. 338
• Citation: 279 Ala. 527,187 So.2d 568
• Parties: Louis Lee RIDDLE, N.C.M., by guardian v. Carolyn Jay DOROUGH.
• Court: Alabama Supreme Court

Page 568

187 So.2d 568

279 Ala. 527

Louis Lee RIDDLE, N.C.M., by guardian v. Carolyn Jay DOROUGH.

1 Div. 338.

Supreme Court of Alabama.

June 2, 1966.

Kenneth Cooper, Bay Minette, for appellant.

Chason, Stone & Chason, Bay Minette, for appellee.

HARWOOD, Justice.

This is an appeal from a judgment entered in favor of the appellee, defendant below, in the Circuit Court of Baldwin County.

Appellant sued appellee for $25,000 for bodily injuries received when he was struck by the appellee's automobile while attempting to cross a public highway near Bay Minette. The appellant, who had been declared non-compos mentis, sued by his legal guardian, his wife, Gladys Riddle.

Count 1 alleged simple negligence and Count 2 charged wanton misconduct. The appellee plead the general issue and contributory negligence to Count 1 and the general issue to Count 2.

Upon conclusion of the testimony, the court gave the affirmative charge as to Count 2, the wanton count. The case was submitted to the jury on Count 1, and verdict was for the defendant. Judgment was entered pursuant to the verdict. No motion for a new trial was filed.

The plaintiff is a middle aged male who lives south of Bay Minette with his family. His residence is located approximately a half mile to the west of U.S. Highway 31 which runs from Bay Minette to Mobile. On the morning of the accident the appellant, around 8:30 o'clock, walked from his house to the highway to get mail from a mailbox which is located on the opposite or east side of the highway. The appellant's general health is poor and his eyesight is limited to some extent. He uses a walking cane to assist him in his movements.

The testimony establishes that the appellant went to the highway unaccompanied and crossed the highway to the mailbox. Upon removing the maill from the mailbox he turned and started walking in a northerly direction toward Bay Minette. After having walked a short distance, he turned and started back toward the mailbox. He was walking on the east shoulder of the highway.

The appellee was driving her automobile in a northerly direction toward Bay Minette. The appellee's four children and her father were passengers in her automobile. Apparently it had rained earlier that morning though the rain had ceased at the time of the accident. The appellee had been driving approximately forty to fifty miles per hour but she had just passed a sign indicating a speed limit of forty miles per hour and she decreased her speed to approximately thirty to thirty-five miles per hour. The appellee testified she observed the appellant walking on the shoulder of the road approximately 'a block or two' away and that he was walking on the side of the highway facing the approaching traffic. She testified that when the distance had closed to approximately fifteen feet the appellant made an abrupt turn and walked onto the highway directly in front of her vehicle. When he stepped in front of her automobile, he waved a walking stick in her direction.

The appellee applied her brakes and swerved her automobile to the right in an attempt to avoid hitting the appellant who was now nearly in the center of the highway. The appellee testified that she was unable to avoid striking the appellant despite all efforts to do so and the left front of her automobile struck him.

Two witnesses who were in an automobile directly behind the automobile of the appellee gave similar testimony. The substance of their testimony is that they had been following the appellee's automobile for a number of miles. The driver of this following vehicle testified that she observed the appellant when he was approximately four car lengths or a little more ahead of her. She was following some three car lengths behind the appellee's vehicle. When the appellee's vehicle was only some two car lengths away from the appellant, he started across the highway. The passenger in the following automobile testified he observed the appellant when he was approximately four or five car lengths away and that nearly at the same time he saw the appellant, he stepped in front of the appellee's vehicle. This witness estimated that the appellee was within a car length or two of the appellant when he left the shoulder of the highway.

The appellee's father testified he observed the appellant about 'a block or a block and a half' away as he was walking in a southerly direction along the shoulder and was facing the approaching traffic. The witness further testified that when they were within two car lengths the appellant suddenly turned to his right and started across the highway waving his cane as he did so.

The appellant was found competent to testify. The substance of the appellant's testimony on direct examination was that after he had removed the mail from the box, he looked in both directions before attempting to cross the highway. To the north he observed a 'van truck' which was proceeding in a southerly direction toward him. The truck was some 200 to 300 feet away from him at this time. He then looked to the south and observed two automobiles traveling toward Bay Minette. These vehicles were '500 feet or more' away. The appellant waited until the truck passed and then started to cross the highway. The appellant testified that when the truck passed the wind 'sagged' him a little, but he felt he had time to get across and he attempted to cross the highway. The appellee's car struck him when he had nearly reached the center line of the highway. The appellant testified that just before the automobile struck him he waved his cane and hands in that direction.

On cross examination the appellant testified that after he removed the mail he walked up the highway for a short distance and then turned and started back. He observed the truck approaching from one direction and the two cars from the other. The appellant then testified that when the truck passed he felt that he had time to get across. The approaching automobiles were still approximately 200 feet away. The appellant testified that he took some five or six steps and had nearly reached the center line of the highway when he looked in the direction of the approaching vehicles and realized that the automobile was within one car length of him. He waved his walking stick and then the automobile struck him. The appellant was later asked on cross examination if it wasn't true that when he stepped out onto the paved portion of the highway that the approaching automobile was only one or two car lengths away from him. The appellant answered in the affirmative.

The appellee, her father, and the two witnesses traveling in the automobile following the appellee all denied that there was a truck approaching from the opposite direction just prior to the accident.

Testimony was submitted by the investigating officer and other witnesses establishing that the appellant, after being struck by the appellee's vehicle, was found to be lying in a position some 22 steps north of the mail box and nearly in the center of the highway.

The appellant argues some fourteen assignments of error in brief.

The appellant urges under assignment number 1 that the trial court erred in allowing, over appellant's objection, a city policeman to testify on cross examination that he had warned the appellant, because of his physical infirmities, not to ever get out on the highway unaccompanied.

It is appellant's contention that the questioning of the police officer concerning this prior transaction was error as the matter had not been gone into upon direct examination and the cross examination should have been limited to those matters brought out on direct examination.

'The right of cross-examination thorough and sifting, belongs to every party as to the witnesses called against him.' Section 443, Title 7, Code of Alabama 1940.

In Alabama, the so-called English Rule of cross examination prevails, that is, the cross examination is not limited to matters brought out on direct examination of a witness, but extends to all matters within the issues of the the case. Coward v. McKinney, 277 Ala. 513, 172 So.2d 538; Madden v. State, 40 Ala.App. 271, 112 So.2d 796; 1 Thompson on Trials, 2nd Ed., Sec. 430 et seq.

The appellant's complaint was founded upon the alleged negligence of the appellee and the appellee had pleaded that the appellant was guilty of contributory negligence. It therefore seems clear that the testimony solicited was directly related to the issues of the case. Assignment of error number 1 is without merit.

Assignment of error number 2 is related to the trial court's action in sustaining appellee's objection to a question propounded to a witness for appellant concerning whether or not the witness observed the appellant's cap at the scene of the accident. Previous testimony had established that the appellant was wearing a cap when he left home earlier that morning. The appellant then asked the witness a similar question and the witness answered in the negative. Granting, without deciding, that the trial court's ruling was in error, the subsequent admission of the witness that he did not see the cap at the scene would render any error harmless. Gunter v. Ganous, 269 Ala. 589, 114 So.2d 389, (H.N. 6); Nelson v. Johnson, 264 Ala. 422, 88 So.2d 358, (H.N. 10); Crescent Amusement Co. v. Knight, 263 Ala. 445, 82 So.2d 919, (H.N. 12); Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.

Assignment 3 is based upon the trial court's excluding the answer of a witness for the appellant than when the witness arrived at the scene of the accident some minutes after its occurrence, he observed that both shoes were not on the appellant's feet.

Evidence pertaining to the condition of the place or thing before or after an accident under certain conditions is admissible in a suit as evidence of its condition at the time of such accident.

There is no contradiction in the record as to the speed of appellee's automobile at the time the...