Rota v. Combs, 3 Div. 798
| Decision Date | 19 December 1957 |
| Docket Number | 3 Div. 798 |
| Citation | 267 Ala. 50,99 So.2d 692 |
| Parties | Beulah ROTA v. Fannie Lee COMBS. |
| Court | Alabama Supreme Court |
Calvin M. Whitesell, Montgomery, for appellant.
Hill, Hill, Stovall & Carter, Montgomery, for appellee.
Beulah Rota (appellant) brought this action for damages for personal injuries against Fannie Lee Combs (appellee). The action arose from an intersectional automobile collision. The complaint contained a count alleging simple negligence and a count alleging wantonness. The cause was submitted to the jury on Count One, the simple negligence count after the court had, by its charge, eliminated Count Two from the jury's consideration. The verdict and judgment were for the appellee. Appellant filed a motion for new trial which was overruled. This appeal is from that judgment.
Two automobiles collied on November 24, 1955, at the intersection of South Lawrence Street, a one way street going south, and Alabama Street, a one way street going east, both being public streets in the City of Montgomery, Alabama. Between the hour of 4:00 and 4:30 p. m., appellant was riding with her husband, who was driving his car, a 1955 BelAir Chevrolet. They were proceeding east on Alabama Street. Appellee was proceeding south on South Lawrence Street, driving a 1951 Chevrolet. Appellant was injured as a result of the collision between the two vehicles. Appellant's husband, the driver of the car in which she was riding, had been drinking prior to the accident and was charged with reckless driving at the scene by the investigating police officers. The charge resulted in a conviction in police court a short time thereafter. There is a 'Yield Right of Way' sign as to vehicles proceeding east on Alabama Street prior to reaching the intersection where the accident occurred. The 'Yield' sign was facing and applicable to the vehicle in which the appellant was traveling in its approach to the intersection. Lawrence Street at this intersection has no traffic control instrumentality as to vehicles proceeding south immediately prior to reaching said intersection and appellee's automobile had the right of way. The speed limit at the point of the accident is 25 miles per hour. The front end of appellee's vehicle struck the appellant's vehicle in the center of the lefthand side. As a result of the impact, the car driven by the appellee was turned completely around and traveled about 23 feet from the point of impact to the place where it came to rest, facing in the direction from which it had come. There were no skid marks left by the appellee's car. The car of appellant's husband traveled a distance of 48 feet after the impact, in the same general direction that it was traveling prior to the collision, jumped over the curb of Alabama Street, knocked down one steel sign and a United States Mail Box, and came to rest pointing in the same general direction as it was traveling at the time of the impact.
Appellant assigns as error the charge of the court which amounted to giving the affirmative charge as to Count Two (wanton count) of the complaint. Appellant urges that under the scintilla rule there was sufficient evidence to warrant submission of the question of wantonness vel non to the jury. The testimony upon which the appellant relies to establish the question of wantonness vel non was rendered by the appellant herself. Appellant, although admitting she had never operated an automobile, testified that she observed the vehicle of the appellee when it was about 25 feet from the automobile in which plaintiff (appellant) was riding, and she stated, 'I will have to say the speed of 60 or 65 miles an hour, or either it looked that way to me--when it just flared up, like that.'
This testimony is the only basis relied upon by the appellant to substantiate her charge of wantonness. All other testimony as to the speed of the appellee's automobile estimates the speed at 20 to 25 miles per hour, and it is so listed on the police accident report. Stripped of the above statement by the appellant concerning the speed of the appellee's auto, there is no evidence upon which to base a claim of wantonness. 'We recognize, of course, that * * * the scintilla doctrine...
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...and contrary to common sense is of no evidentiary value and thus cannot raise an issue for jury determination, citing Rota v. Combs, 267 Ala. 50, 99 So.2d 692; King v. Brindley, 255 Ala. 425, 51 So.2d 870. Quoting the appellant, "The heart and soul of this appeal lies in the aplant's conten......
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...of evidence will not be inferred by mere speculation. Arrington v. Working Woman's Home, 368 So.2d 851 (Ala.1979); Rota v. Combs, 267 Ala. 50, 99 So.2d 692 (1958). We also find that the evidence offered by the Smiths' affidavits of the former Citicorp employees is inadmissible and, therefor......
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...at least a reasonable inference rather than mere suspicion. Arrington v. Working Woman's Home, supra, 368 So.2d at 854; Rota v. Combs, 267 Ala. 50, 99 So.2d 692 (1957); Locke v. Sparks, 263 Ala. 137, 81 So.2d 670 (1955). Under Rule 50(e), Alabama Rules of Civil Procedure, a directed verdict......
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