Scotch Lumber Co. v. Baugh
| Decision Date | 13 January 1972 |
| Docket Number | 1 Div. 634 |
| Citation | 256 So.2d 869,288 Ala. 34 |
| Parties | SCOTCH LUMBER CO., a Co-partnership composed of William D. Harrigan, et al. v. Clarence C. BAUGH. |
| Court | Alabama Supreme Court |
Edward P. Turner, Jr., Chatom, Alton R. Brown, Jr., Mobile, for appellants.
Wyman O. Gilmore, Grove Hill, William L. Utsey, Butler, for appellee.
Defendants appeal from judgment for plaintiff in action for wrongful death of plaintiff's seventeen-year-old minor son.
There are three defendants. Two are partners who owned a tractor and trailer which will sometimes be referred to as the truck or log truck. The other defendant, Brooks, was driving the truck as an employee of the partners.
In Count 2, plaintiff alleges that his son was operating a motorcycle on U.S. Highway 43 where the highway intersects Chilton road, that plaintiff's son made a left turn off the highway into Chilton road, that defendant Brooks negligently drove the log truck over plaintiff's son, and, as a proximate consequence thereof, he died. In Count 1 plaintiff omits the allegation that his son was making a left turn and merely alleges that defendant Brooks negligently drove the truck over plaintiff's son.
Defendants pleaded the general issue and contributory negligence on the part of decedent.
The case was submitted to the jury on the two counts and defendants' pleas. Verdict and judgment were for plaintiff. The court overruled defendants' motion for new trial.
Defendants assign as error the refusal of affirmative charges requested in writing by defendants and the overruling of the motion for new trial.
It seems that Highway 43 is a paved black top road running approximately north and south, and that 'Chilton and Fulton' road is a gravel road running east and west. Plaintiff's son was operating a motor bike, sometimes referred to as a 'motorcycle,' traveling north on Highway 43. Roy Rutledge, who was a year older than decedent, was riding behind decedent on the motor bike.
Defendants' truck was loaded with tree length logs, was traveling east on Chilton road, and had stopped on the west side of the intersection as the motor bike approached. The truck moved forward not over eight or ten feet and stopped again when the passenger on the bike, Rutledge, gave a left turn signal.
Rutledge testified that he was traveling about 'forty or forty-five' coming into 'Fulton Junction'; that he gave the left signal; that they slowed down when they came into the intersection and started turning left; after 'we got around the front of the truck' the bike started 'kinda slipping'; there was gravel there; the truck was 'up at the intersection'; 'We went past the truck' and turned 'in on Chilton road'; when the bike started slipping Rutledge 'slid off and stepped off the bike' and 'went on down the road a little bit to keep my balance'; he stopped 'About ten or fifteen yards' from where the truck was; he does not know whether it was ten or fifteen yards or feet; when he stopped he was not looking at the motor bike; after he 'looked back around' he saw that decedent was trying to keep the bike from falling over; it went up under the truck at the rear; after Rutledge stepped off the motor bike and stopped he was 'Back, and out to the side a little piece' in relation to the cab of the truck; he was not still in Chilton road, he was off to the side of the road 'About in the ditch' which was 'Just a small one'; the truck was 'on the other road' from the witness, and half of the width of the road separated him from the cab of the truck; he does not know how wide Chilton road is; he does not know whether the truck was moving when he stepped off the bike, he did not see it moving, he was not looking; he did not know the truck driver, he had just seen him around before; he spoke to the driver by waving at him; he does not know whether decedent waved at the driver.
Rutledge testified further that after he stepped off the bike, 'I saw him going toward the back wheels of the truck' and 'I didn't know that that was going to happen at that time, but after I seen that he had done gone up under the truck I started hollering to the driver'; after he saw that decedent 'was going under the truck' the witness started hollering at the driver 'By the time he had got up under it'; Rutledge testified that the truck was loaded with tree length logs; that the rear wheels of the trailer were sitting way back from the cab of the truck; that decedent went 'up under the belly part of the logs, between the pull wheels and the trailer wheels back there'; that, when Rutledge started hollering, he could see the driver and that the driver, Brooks, did not turn around and look at the witness. The witness testified:
'Q When you hollered, you said he began to move or he was moving?
'A He was moving.
'Q Was it slow or at a fast rate?
'A Slow.
'Q The wheels were just turning?
'A Yes.'
Rutledge testified that the back wheels of the trailer passed over the bike, 'Caught it about the middle'; when the witness first 'saw he had gone under there and began to holler' decedent was 'A couple of feet' from the wheels of the truck; that the wheels went over decedent's body; that the witness saw a pickup truck parked behind the log truck; that the man in the pickup told the witness that he was going to catch the log truck and stopped the log truck down the road.
Rutledge testified that the log truck was making a noise like a diesel; it was a loud noise; that the witness was hollering as loud as he could.
On cross-examination, Rutledge testified:
'Q And as the bike got under the wheels and the truck was then moving forward, it was at that point that you started hollering, isn't that right?
'A Yes, sir.
'. . ..
'Q All right, the wheel of the truck, with the truck moving, was a foot or two from the bike wheel at the time you hollered, 'Whoa', or 'Stop', or whatever you said?
'A No, I had seen it knocked down then I started hollering.
'Q You saw the truck wheel knock the bike and Junior down?
'A Yes, sir.
'Q Was the truck on the bike wheel or Junior at the time you first hollered?
'A Yes, sir.'
The witness Autry testified that he arrived at the intersection between 4:30 and 5:30; Daryl Dunnagan was with the witness; the witness followed defendants' truck to the intersection; defendants' truck was loaded with tree length logs; the log truck was stopped or almost stopped; the witness stopped; the log truck stopped; he saw the bike come into view; it came from the south; it got on some gravel; it made a left turn off the highway; it passed in front of the log truck and turned left; the bike was traveling around ten or fifteen miles an hour; it was slowing up to make the turn; after he got in the turn, almost through the turn, he got on some loose gravel; it seemed to the witness when he gave it a little throttle to make it pull the rear spun out from under him on the loose gravel; 'When it slid out from under him it got down in kinda a slide under the left tandem of the trailer and slid in front of it'; as to the person on the back, about the time it spun out from under him he dropped his feet down and made a step or two to hold his balance and turned to the right and got off of the road and over almost in the ditch more or less; he could have been thirty to forty feet from the cab of the truck; the boy on the bike stayed on the motorcycle until he went under there; 'About the same time the motor cycle went under it, the truck pulled on off over the motor cycle and the young fellow that was on it'; the man standing out to the side was screaming and hollering; the witness heard him; the witness was around maybe fifty or sixty feet from him; he started hollering before the truck got on decedent; when the boy started hollering, the truck was moving very slow; the truck could have stopped when the boy 'went to hollering'; the witness was from twelve to twenty feet behind the logs that were on the truck; the window on the driver's side of the log truck was down when the witness stopped the log truck; the witness had to cross 'Five' to get up beside the log truck; the witness blew his horn, he does not know whether 'he' heard the horn; the witness could hear the log truck running, it was a diesel and any diesel will make a whole lot more racket than a gas one will; the boy was 'flagging' up and down with his hands; he was standing 'about a forty-five degree angle' from the cab of the truck; 'that would be forty-five degrees behind the truck where the driver was sitting'; there is a black top apron there that extends onto Chilton road about eighty feet; the wheels of the trailer could have been back on this gravel, 'I don't remember too much whether it was sitting on the gravel or on the pad'; the pickup of the witness would have definitely been back off of the black top apron.
Autry testified:
'Q All right, now then, at what point was it in relation to when Rutledge got off of the motor bike that Mr. Brooks started moving the truck?
'Q In other words, the truck started moving and the motor bike went under the wheel about the same time, is that your testimony?
'A Or maybe the truck started a second or two before the bike went under it.'
Autry testified that after Rutledge got off the bike, it was traveling very slow, just enough for it to slide up to the truck, about twenty or thirty feet it had to slide to get under the truck; the distance from the pull wheels of the truck to the trailer wheel was something like thirty to forty feet; when Rutledge started hollering the bike was on its left side sliding toward the trailer wheel; the bike was more or less up under the truck, the...
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