Roberts Const. Co. v. Brown
| Decision Date | 25 May 1961 |
| Docket Number | 6 Div. 445,6 Div. 446 |
| Citation | 131 So.2d 710,272 Ala. 440 |
| Parties | ROBERTS CONSTRUCTION COMPANY, Inc. v. Hugh W. BROWN, Jr. ROBERTS CONSTRUCTION COMPANY, Inc. v. Thelma Alice BROWN, pro aml. , |
| Court | Alabama Supreme Court |
Lange, Simpson, Robinson & Somerville, Birmingham, for appellants.
Dempsey Pennington and Ernest W. Weir, Birmingham, for appellees.
These are appeals in two separate cases tried together in the circuit court of Jefferson County and submitted here on one record by agreement of the parties. Verdicts were returned in favor of the plaintiffs in both cases and judgments thereon were duly rendered. These appeals are from said judgments and from judgments overruling the defendant's motions for new trials.
In 6 Div. 446 the suit was brought by Thelma Alice Brown, 6 years old, suing by her father and next friend, Hugh W. Brown, Jr., to recover damages for her personal injuries. In 6 Div. 445, Hugh W. Brown, Jr., brought suit for the loss of services of his said daughter. As the cases finally went to the jury, appellant Roberts Construction Company, Inc., was the only defendant in each case.
In the child's case the verdict and judgment was for $5,000 and in the father's case $750.
The complaint in the child's suit consisted of two counts, one for negligence and the other charging the defendant with wantonness.
In the father's case, there is one count which is based on negligence.
It appears from the evidence that the child was injured while riding on a rig operated by appellant's employee in the performance of a street improvement contract with the City of Birmingham. The rig consisted of a Farmall Tractor pulling a roller, to which there was attached a 'drag broom' consisting of a wooden frame with street brushes nailed to the under side. When the child fell from the rig she became entangled in it and was dragged along the street until her cries were heard by the operator.
One of the assignments of error in each case is that the court erred in giving to the jury as a part of its oral charge the following instructions, to the giving of which the defendant (appellant) duly excepted, viz.:
'If you find from the evidence, after carefully considering it, that the operator of the machine knew that the child was riding on the back of this brush, or had reason to believe that she was riding there, then he owed a duty to do everything that a reasonably prudent person would do under the same or similar circumstances to avoid any injury to the plaintiff.'
To place this part of the charge in proper context, we quote the following which immediately preceded it, viz.:
* * *'
As already noted, there appears to be no question that the child was riding on the brush or rig. And there was evidence from which they jury could find that she was a trespasser thereon. This, obviously, was the issue to which the foregoing portions of the oral charge were addressed. The portion objected to conditioned the right of recovery, in one alternative, to a finding by the jury that the operator 'had reason to believe that she was riding there.' Such is not the applicable rule. The duty owed a trespasser on a motor vehicle is thus stated in Birmingham Ice & Cold Storage Co. v. Alley, 237 Ala. 503, 509, 25 So.2d 37, 42, viz.:
'It is evident that this court has...
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Travis v. Dreis and Krump Mfg. Co., Docket Nos. 101028
...was certain to occur. See United States v. Ed Lusk Construction Co., 504 F.2d 328, 331 (C.A.10, 1974); Roberts Construction Co. v. Brown, 272 Ala. 440, 442, 131 So.2d 710 (1961). A plaintiff may establish a corporate employer's actual knowledge by showing that a supervisory or managerial em......