Simon v. Goodman, 6 Div. 55.
Citation | 244 Ala. 422,13 So.2d 679 |
Decision Date | 20 May 1943 |
Docket Number | 6 Div. 55. |
Parties | SIMON v. GOODMAN. |
Court | Supreme Court of Alabama |
Rehearing Denied June 10, 1943.
Taylor, Higgins & Windham and J. Howard Perdue Jr., all of Birmingham, for appellant.
Lange Simpson, Brantley & Robinson, of Birmingham, for appellee.
The question presented by the appeal is the giving at defendant's request the general affirmative charge as to the wanton count.
There are many decisions by this court, touching the question presented for decision, not necessary to cite. Typical cases of wantonness, supported by a scintilla of evidence are Lambert v. Birmingham Electric Co., Ala.Sup., 13 So.2d 579; Birmingham Railway, Light & Power Co. v. Jung 161 Ala. 461, 475, 49 So. 434, 18 Ann.Cas. 557; Birmingham Electric Co. v. Mann, 226 Ala. 379, 147 So. 165; Dozier v. Woods, 190 Ala. 279, 67 So. 283; Duke v. Gaines, 224 Ala. 519, 140 So. 600 (defining wantonness); First National Bank v. Sanders, 227 Ala. 313, 149 So. 848.
A typical decision to the effect that on such tendency of evidence the court was not authorized to exclude the issue from the jury is Daniel v. Motes, 228 Ala. 454, 153 So. 727, 728, where wantonness is illustrated as follows:
In Jack Cole, Inc., v. Walker, 240 Ala. 683, 200 So. 768, 771, Mr. Justice Knight said for the court: * * * "
From the foregoing decisions we observe that each case is bound by its material facts; that before it can be said an act or failure to act is wantonly done or omitted and an injury resulting thereby is wantonly inflicted, it must be shown that the party charged with committing the wrong or omitting to reasonably act in that behalf, had knowledge of the danger, present or impending, to the other party or parties so situated, and being conscious (from his knowledge of existing conditions and impending danger) an injury would likely or probably result from his conduct or omission to act, with reckless indifference to consequences, consciously and intentionally did the wrongful act, or omitted to do or discharge the known duty in the premises to avert such danger, and which produced the injurious result. Birmingham Electric Co. v. Turner, 241 Ala. 66, 1 So.2d 299; Alabama Power Co. v. Dunlap, 240 Ala. 568, 200 So. 617; Feore v. Trammel, 212 Ala. 325, 102 So. 529; Shepard v. Louisville & N.R. Co., 200 Ala. 524, 76 So. 850.
The first witness for the plaintiff was Joe Hannah, who testified that his attention was attracted by the screams of plaintiff, who was down on the pavement in front of the car that Mrs. Goodman was driving; that her body was within three feet of the wall on the north side of the alley and two or three feet in front of the automobile; that there was a tan mark similar to where a shoe had been scrubbed on the pavement near the body of Mrs. Simon.
On cross-examination this witness testified further as follows: * * * "
Pertinent parts of the testimony of R.L. Haynes are:
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