Roberts Const. Co. v. Henry
| Decision Date | 07 March 1957 |
| Citation | 265 Ala. 608,93 So.2d 498 |
| Parties | ROBERTS CONSTRUCTION CO. v. C. L. HENRY JR. 6 Civ. 39. |
| Court | Alabama Supreme Court |
Lange, Simpson, Robinson & Somerville and Wm. L. Clark, Birmingham, for appellant.
Maurice F. Bishop and Robt. S. Richard, Birmingham, for appellee.
C. L. Henry, Jr. (appellee) instituted a suit in the Circuit Court of Jefferson County in which Roberts Construction Company, a corporation (appellant), was named with numerous other parties as defendant. All of the parties defendant with the exception of Roberts Construction Company, a corporation, Birmingham Rock Bit Company, Inc., a corporation, and Chicago Pneumatic Tool Company, a corporation, were eliminated prior to the trial of the case.
The case was submitted to the jury on three counts,--Count 1 as amended, Count 2 as amended and Count A. Count 1 as amended charges that on to wit June 30, 1954, plaintiff was driving his automobile upon a public street in the City of Albertville, Alabama, and that on said occasion, an agent, servant or employee of the defendants negligently injured the plaintiff by so negligently operating a motor vehicle and air compressor unit which was attached thereto, that the air compressor unit was caused or allowed to crash into the automobile in which the plaintiff was driving.
Count 2 as amended charges that an agent, servant or employee of the defendants negligently injured the plaintiff by so negligently attaching an air compressor unit to a motor vehicle then and there being driven or operated by said agent, servant or employee of the defendants, that the air compressor unit was caused to become disengaged and crash into plaintiff's automobile.
Count A of the complaint charges that the defendants Roberts Construction Company had in its possession and under its control under a rental or purchase option agreement from the defendant Birmingham Rock Bit Company, a corporation, a certain air compressor unit and attachment which were manufactured by the defendant Chicago Pneumatic Tool Company, a corporation, and alleges that the plaintiff's alleged injuries or damages were sustained as a proximate consequence of the negligence of the defendant Chicago Pneumatic Tool Company in that it manufactured or assembled said air compressor unit with a defective or dangerous to bar attachment and the negligence of the defendant Birmingham Rock Bit Company in that it sold or leased to the defendant Roberts Construction Company the said air compressor unit and tow bar attachment when it knew or should have known that said tow bar attachment was defective or dangerous and was unsafe to be pulled or towed over the public streets and the negligence of the defendant Roberts Construction Company in negligently permitting or negligently causing the air compressor unit to be operated upon the public streets while said air compressor unit and the attachment thereto was in a defective and dangerous condition.
The pleading of the defendants was in short by consent. The jury returned a verdict in favor of the plaintiff and against the defendant Roberts Construction Company (appellant) and assessed the plaintiff's damages in the sum of $37,950. The court entered a judgment accordingly. Under the verdict rendered the court entered judgment in favor of the defendants Chicago Pneumatic Tool Company and Birmingham Rock Bit Company. The defendant Roberts Construction Company filed a motion for a new trial, which the court overruled. The defendant Roberts Construction Company followed with this appeal.
We may summarize the principal questions presented upon this appeal as follows. (1) Did the trial court err in submitting the case to the jury as to the defendant, Roberts Construction Company, under Counts 1 and 2 of the complaint as amended, as to which the court directed the jury not to return a verdict in favor of the plaintiff and against the other defendants? (2) Did the trial court err in overruling the defendant's objection to certain alleged improper or prejudicial statements made by counsel for the plaintiff during the closing argument of the trial? (3) Did the trial court err in permitting, over the defendant's objection, a certain witness to express the conclusion that it was dangerous and unsafe for an air compressor unit to be towed upon the public streets in a certain manner? (4) Did the trial court err in refusing to give to the jury, at the request of the defendant, certain written instructions duly requested by the defendant? (5) Did the trial court err in overruling the defendant's motion for a new trial?
On the morning of June 30, 1954, at about 6:30 o'clock A. M., C. L. Henry, Jr. (appellee) left his home in Albertville on the way to work. He was driving his Chevrolet automobile along East Main Street in the City of Albertville in what appears to be an admittedly careful manner, well on his side of the street, which was thirty-one feet wide. As he approached 614 East Main Street, an International Truck of the defendant, Roberts Construction Company, driven by its employee, was going slightly down-grade in the opposite direction and pulling or towing a 3,300 pound air compressor. As the truck reached a point almost even with the car of C. L. Henry, Jr. (appellee), the air compressor unit broke or became disengaged from the truck pulling it, crossed over East Main Street on its wrong or left side of the street and ran into the side of the automobile of C. L. Henry, Jr., which was almost if not against the curb on its right side of the street. Pictures introduced in evidence appear to show the tire marks of the Henry car against the curb on his side of the street. C. L. Henry, Jr. (appellee) pulled himself to the ground between the sidewalk and the curb. He was removed to the hospital in Albertville by ambulance where he was treated by Dr. H. L. Rogers, Chief Surgeon of the hospital. He was later examined by Dr. H. Earle Conwell, an eminent orthopedic surgeon of Birmingham. The personal injuries suffered by C. L. Henry, Jr. (appellee) will be described later.
The complete history of the air compressor was developed during the trial. Tendencies of the evidence show that the tow bar had not been broken or welded when in the possession of any person or firm who had possession of it prior to the delivery of it to the Roberts Construction Company on April 3, 1954. On the contrary Roberts Construction Company undertook to show by introducing pictures of a fractured or broken tow bar taken in Pittsburgh that the tow bar had been fractured or broken 'at the point of a defective weld,' the cause being careless and incompetent welding.
Tendencies of the evidence further show that on the morning of the collision the Superintendent of Roberts Construction Company, one Smith, instructed the driver one Horace Williams to 'hook up the air compressor at the air port and take it to the job some miles distant.' The truck had two pieces of steel [a hitch with a hole in them]. It was 'rigged up' so that the eye of 'the tow bar could be placed between these two pieces and a pin made out of a welding rod could be dropped down between the pieces.' Tendencies of the evidence show that at the time of the accident the front wheel of the 3,300 pound tow bar air compressor was on the ground and not retracted. The air compressor is manufactured so that the front wheel can be retracted when moving it over the streets and highways by raising the wheel and inserting a pin in a hole to keep it in a raised position when being moved. After the compressor is delivered to location the tongue or tow bar is raised and the front wheel is lowered by removing the pin that held it up during movement.
The testimony of expert witnesses with fifteen to thirty years experience tended to show that in the moving of air compressors from job-site to job-site, it was 'unsafe', 'irregular' and 'not a customary practice' to move an air compressor with the front wheel down. One of these witnesses testified that it is not customary or standard practice to move an air compressor with the front wheel down and that if you do 'something will break.' Another of these witnesses testified that he considered it 'very dangerous and very unsafe' to move an air compressor with the front wheel on the ground. There was other testimony to the same effect.
According to the evidence it appears to be undisputed that the air compressor was being pulled without any safety chains. Tendencies of the evidence show that it was a dangerous and unsafe practice to move an air compressor over the public streets without safety chains. The Superintendent of Warren Brothers Road Construction Company for the past fifteen years testified that it was customary to move air compressors over the streets from job-site to job-site and that it was and is the customary practice to use and require safety chains and that the use of safety chains 'was a general safety practice.'
There was other expert testimony of a similar nature and one of these witnesses testified that if the tow bar broke you would not lose the compressor if you had safety chains. That is the purpose of safety chains.
There was testimony tending to show that when various witnesses reached the point of collision immediately thereafter, no part of a tow bar eye or connection was in the hitch on the rear of the truck and there were no pieces on the street at the scene of the accident. One of the witnesses for the Roberts Construction Company testified to the contrary.
The testimony appears to be undisputed that the air compressor became disengaged from the towing vehicle, crossed the street and crashed into the automobile of C. L. Henry, Jr. (appellee) with such force that the tow bar pierced the steel side of his automobile at the left front door and entered his car.
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...although a directed verdict may be ordered as to all the others. Tit. 7, § 139, Code 1940 (Recompiled in 1958); Roberts Construction Co. v. Henry, 265 Ala. 608, 93 So.2d 498. There are five assignments of error on this appeal, to '1. The Court erred in giving at the request of the Appellee ......
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