Ross v. Newsome

• Decision Date: 18 April 1961
• Docket Number: No. 18601.,18601.
• Citation: 289 F.2d 209
• Parties: Lulu M. ROSS, as Administratrix of the Estate of Louis Carpenter, and Lulu M. Ross, as Administratrix of the Estate of Sylvia M. Carpenter, Appellants, v. Mary W. NEWSOME and Edwin Newsome, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

289 F.2d 209 (1961)

Lulu M. ROSS, as Administratrix of the Estate of Louis Carpenter, and Lulu M. Ross, as Administratrix of the Estate of Sylvia M. Carpenter, Appellants, v. Mary W. NEWSOME and Edwin Newsome, Appellees.

No. 18601.

United States Court of Appeals Fifth Circuit.

April 18, 1961.

John Maddox, Oscar M. Smith, Rome, Ga., Matthews, Maddox, Walton & Smith, Rome, Ga., of counsel, for appellants.

A. Cecil Palmour, Summerville, Ga., Leland Randall, Oneonta, Ala., Cook & Palmour, Summerville, Ga., Johnson & Randall, Oneonta, Ala., for appellees.

Before RIVES, BROWN and WISDOM, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a judgment in favor of the defendants on their counter-claims for damages resulting from a collision at a highway intersection. On November 8, 1958, at about 10:30 o'clock A.M., in Blount County, Alabama, the Carpenters were proceeding south on U.S. Highway No. 231 in their Oldsmobile automobile, and Mrs. Newsome was driving her husband's Plymouth automobile west on U.S. Highway No. 278. At the intersection of the two highways, the automobiles collided. Four persons were killed — Mr. and Mrs. Carpenter, Nedra Newsome, the four-year-old daughter of the Newsomes, and Brenda Wilson, fourteen years of age, a passenger in the Newsome car.¹ Mrs. Newsome and her two-year-old son, Edwin Earl, were injured. The automobiles were virtually demolished.

Highway No. 231 ran generally north and south. It was a through highway with speed limit of 45 miles per hour within a distance of one mile from its intersection with Highway No. 278. The 45 m. p. h. speed zone was clearly marked. Highway No. 278 ran generally east and west, and had a large "stop" sign over it and on the side of it requiring traffic to stop before entering its intersection with Highway No. 231. Each highway had several signs along it warning of the intersection and its danger.

The weather was clear and the pavement dry. Visibility of vehicles approaching the intersection from the north on No. 231 and from the east on No. 278 was unimpeded except by one house. The testimony runs the entire gamut. Mrs. Newsome testified that she stopped and looked both ways before entering the intersection. Witnesses testified to seeing her slow down to 10 or 15 miles per hour, and that she could have stopped when their vision was obstructed. Other witnesses testified that Mrs. Newsome failed to stop or slow down but entered the intersection at a speed of from 35 to 80 m. p. h. The speed of the Newsome car at the time of the collision is variously estimated at from 10 m. p. h. to in excess of 40 m. p. h. The speed of the Carpenter automobile just before the collision is variously estimated at from 45 m. p. h. to 90 m. p. h.

The judgment on the jury's verdict was in favor of Mrs. Newsome for $10,000.00 for her injuries, and in favor of Mr. Newsome for $10,000.00 as damages for the death of his daughter, Nedra, and for $2,875.00 for compensatory damages for such things as medical expenses for his wife, loss of consortium, and damages to his automobile. The errors relied upon are thus set forth in appellants' brief:

"The trial court erred in:

"(a) Overruling and denying plaintiffs-appellants\' motion for new trial;

"(b) Refusing to set aside the verdicts and judgments, which were against the weight of the evidence;

"(c) Refusing to set aside the verdict and judgment for the death of Nedra Newsome, which was excessive; and

"(d) Excluding the opinion of the Highway Patrolman as to the speed of the vehicles."

This Court's power to review the ruling of the district court on motion for new trial either on the sufficiency of the evidence or on claimed excessiveness of damages is extremely limited. See Whiteman v. Pitrie, 5 Cir., 1955, 220 F.2d 914, 918-920.

The Newsomes' counterclaims charged the driver of the Carpenter automobile both with simple negligence and with wanton misconduct. The jury could reasonably have believed from the evidence that, in the face of visible warnings of a dangerous intersection, and with little or no lookout for approaching traffic, the Carpenter automobile was driven through a 45 m. p. h. speed zone at a speed of from 80 to 90 m. p. h., and thus could have inferred that its driver was guilty of wanton misconduct. See Vredenburgh Saw Mill Co. v. Black, 1948, 251 Ala. 302, 37 So.2d 212, 214; Graham v. Werfel, 1934, 229 Ala. 385, 157 So. 201, 204; Ford v. Hankins, 1923, 209 Ala. 202, 96 So. 349, 352; Hood & Wheeler Furniture Co. v. Royal, 1917, 200 Ala. 607, 76 So. 965, 967. In the face of a general verdict for the Newsomes, we cannot assume that the jury did not find the driver of the Carpenter automobile guilty of...