Riddle v. Franklin
| Decision Date | 06 December 1973 |
| Citation | 286 So.2d 841,291 Ala. 671 |
| Parties | Jesse RIDDLE v. Garmon FRANKLIN et al. David Wayne RIDDLE v. Garmon FRANKLIN et al. SC 162, SC 163. |
| Court | Alabama Supreme Court |
J. Wm. Thomason, Bessemer, for appellants.
Rives, Peterson, Pettus, Conway & Burge and Edgar M. Elliott, III, Birmingham, for appellees.
Plaintiffs appeal from judgments for defendant in actions for damages for personal injury sustained by one of the plaintiffs when a motorcycle on which he was riding as a passenger collided with an automobile operated by defendant.
The collision occurred at approximately nine o'clock at night in December on Warrior River Road, which is a blacktop road leading to campsites on the river. The injured plaintiff testified at the trial that he was seventeen years old. The motorcycle driver testified that he was sixteen years old. The motorcycle was traveling in an easterly direction.
Defendant was traveling in a westerly direction. She turned left into a driveway on the south side of the road. When she placed her car in reverse to back into the highway the motor stalled. Part of the car remained in the eastbound traffic lane. While the car was stalled the motorcycle ran into the car, and the motorcycle passenger was injured.
The plaintiff in one action is the motorcycle passenger and his father is the plaintiff in the other action. The two actions were consolidated for trial and on the appeal.
Plaintiffs contend that the rulings of the trial court were erroneous in three respects.
Plaintiffs argue that the trial court erred in overruling plaintiffs' motion for new trial for that the verdict is contrary to the great preponderance of the evidence.
Plaintiffs argue that the facts are such that the only reasonable conclusion is that defendant was guilty of negligence as a matter of law. There is evidence that at nine o'clock at night on Warrior River Road, in December, defendant was driving in a westerly direction; that she could see clearly for two or three blocks to the east and two or three blocks to the west; that no traffic was coming from either direction; that her front and rear lights were on; that she turned left into the entrance to a driveway on the south side of the road; that her car stalled and was partially in the eastbound traffic lane; that she attempted to start the car but was not able to do so through no fault on her part; that, while her car was stalled, the motorcycle on which plaintiff was riding came into view from the west traveling at a speed of fifty miles an hour and did not slow down until it hit defendant's car over the right rear wheel; and that there is a posted speed sign indicating a speed limit of forty-five miles per hour for traffic traveling east on Warrior River Road at the point of impact.
This court has said:
'. . . But when there is evidence on both sides, or some evidence to support the verdict, it should not be set aside, because it may not correspond with the opinion of the court as to the weight of the testimony, or because it is against the mere preponderance of the evidence. . . .' Cobb v. Malone, 92 Ala. 630, 635, 9 So. 738, 740.
In light of the evidence noted above we are not persuaded that there is no evidence to support a finding by the jury that defendant was not guilty of negligence which proximately caused plaintiff's injury, or that the trial court erred in overruling those grounds of the motion for new trial wherein plaintiffs assert that the verdict is not sustained by or is contrary to the great preponderance of the evidence.
Plaintiffs assign as error giving to the jury defendant's requested charge as follows:
The son's complaint contained two counts, (A) charging negligence, and (B) charging wantonness. The father's complaint contained only one count, (A) charging negligence.
Plaintiffs first argue that there is a scintilla of evidence to prove that defendant was guilty of wantonness because plaintiff had pulled across the eastbound lane, was blocking a substantial portion of it, and that the lights on plaintiff's car were not on. The witness, Letson, was the driver of the motorcycle on which the plaintiff, who was injured, was riding. Plaintiffs say that the testimony of Letson furnishes evidence to support an inference that defendant's lights were not on. Defendant says that the testimony of Letson does not provide such evidence. Pertinent testimony of Letson is next set out.
'Q When you rounded the curve and came into that intersection, Sam, could you see the car then?
'A No, sir.
'Q Okay. When could you first see the car?
'A When my headlights hit it.
'Q Okay. When did your headlights hit it? Do you have a judgment in feet or length of a football field or portion of the length of a football field or whatever, however way it was?
'A Maybe a hundred foot.
'. . .
'Q Okay. Now, when you approached this, and when you first saw the car was there anything in the--let's see, now, this would be the west-bound lane of traffic. Just keep seated there, Sam, let me point up here. You were going this way. And this lane of traffic coming this way, was there anything in this lane of traffic? Did you see any headlights?
'A Yes, sir.
'Q You did?
'A Yes, sir.
'Q Do you know where those headlights were? Do you know where they were located when you saw them?
'A Car was stopped in the other lane.
'Q Did you know that when you saw them?
'A No, sir.
'Q You learned that after the accident; is that correct?
'A Yes, sir.
' 'Q Are you saying that there were no lights on Mrs. Franklin's car?
'A I didn't see any.
'Q Have you not made the statement, Sam, that you did see the lights on her car but you thought it was in the driveway?
'A I seen some lights and I thought they was off the road.
'Q It later turned out that that was the lights on her car, didn't it, Sam?
'A Yes, sir.
'Q So you saw her headlights, didn't you?
'A I saw tail lights.
'A Yes, sir.
'Q You also saw the headlights didn't you?
'A I don't really remember.
'Q Do you remember making a statement that you did see the headlights and thought the car was in the driveway?
'A I remember saying that there were lights off the road.
'Q Do you remember also saying that you saw the headlights on the car?
'A I don't remember.
'Q But you did see lights, whether they were headlights or tail lights, did you not?
'A Yes, sir.
'Q They were on, no question about that; is that right?
'A Yes, sir.
'Q You saw those before your headlights picked up her car, didn't you?
'A Just a little bit before.
'Q How far back in your best judgment did you see those lights before your headlights picked up her car?
'A Fifty foot.
'. . .
'q Sam, you said you saw some lights?
'A Yes, sir.
'Q Have you ever identified those lights as the lights on Mrs. Franklin's car?
'A If I really knew that they was hers or not?
'Q Do you know now whether they were her lights or whether they were some other lights?
'A No, sir.
'. . .
'A No, sir, I don't.
'Q Wasn't any other cars around, was there, Sam, except hers and the one you said was stopped?
'A That's the only one I seen.
'Q And you said the one stopped was heading toward you, was it not?
'A Yes, sir.
'Q So you couldn't see the tail lights on it, could you?
'A No, sir.'
Letson testified unequivocally that he saw taillights and could not see taillights on the car that was coming toward him. He also saw some lights he thought were off the road. The only cars shown to be present were defendant's car and the car coming toward Letson. The only taillights Letson could have seen, according to his testimony, were the taillights on defendant's car. We are of opinion that there is no testimony to support an inference that defendant's lights were not on.
As stated above, at the place where defendant turned, she could see two or three blocks in both directions. There is no testimony that any vehicle was in sight of defendant at the time she made the turn to the left. No evidence is pointed out which shows that defendant was aware of any danger from approaching traffic, or other cause, at the time she made the left turn, or that there was any reason for defendant to anticipate danger arising out of making a left turn at the time and under the circumstances shown by the evidence.
This court has said:
'' Atlantic Coast Line R. Co. v. Barganier, 258 Ala. 94, 102, 61 So.2d 35, 42.
See also: Naugher v. L. & N.R. Co., 206 Ala. 515, 91 So. 254; Smith v. Roland, 243 Ala. 400, 10 So.2d 367; and Johnson v. McNear, 255 Ala. 457, 52 So.2d 154.
Under the authorities cited, the evidence fails to show wantonness on the part of defendant.
Plaintiffs' second argument is that giving...
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