Smith v. Lawson

• Decision Date: 14 June 1956
• Docket Number: 6 Div. 928
• Citation: 88 So.2d 322,264 Ala. 389
• Parties: Nell SMITH v. Elaine E. LAWSON. Nell SMITH v. James M. LAWSON. , 928-A.
• Court: Alabama Supreme Court

Page 322

88 So.2d 322

264 Ala. 389

Nell SMITH v. Elaine E. LAWSON.

Nell SMITH v. James M. LAWSON.

6 Div. 928, 928-A.

Supreme Court of Alabama.

June 14, 1956.

Jackson, Rives, Pettus & Peterson, Birmingham, for appellant.

Dan P. Barber and Harold M. Cook, Birmingham, for appellees.

SIMPSON, Justice.

On January 6, 1954, the automobiles driven by appellant and appellee, Mrs. Lawson, were involved in an intersectional collision. Appellees, suing separately, sought to recover for personal injuries, property damage and damages resulting to appellee Mr. Lawson on account of his wife's injuries. The suits were consolidated and tried together. From a judgment in favor of the plaintiffs, defendant has appealed.

Both Lawsons are appellees, but reference in the singular to appellee or plaintiff will be to Mrs. Lawson only since hers is the main suit and Mr. Lawson's being dependent or derivative as to right of recovery.

Mrs. Lawson, in her complaint, charged negligence and wanton conduct on the part of Mrs. Smith; Mr. Lawson charged only negligence. Reversible error is said to appear in the refusal of the trial court to give the affirmative charge with hypothesis in favor of the appellant as to each suit and each count. Appellant also contends that the trial court erred in overruling the motion for a new trial upon the ground that the verdicts are contrary to the weight of the evidence.

For emphasis we refer to two oft cited rules of review. Where the affirmative charge is refused the defendant, the appellate court in reviewing the ruling must accept as true the evidence favorable to the plaintiff and look to the strongest tendencies of the testimony in his behalf. Godfrey v. Vinson, 1926, 215 Ala. 166, 110 So. 13; Henley v. Lollar, 1950, 35 Ala.App. 182, 44 So.2d 791. And where the trial court refuses to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. W. T. Smith Lumber Co. v. McKenzie, 1952, 256 Ala. 496, 55 So.2d 919. Keeping in view these rules we will give a brief recital of the pertinent evidence.

On a clear afternoon Mrs. Elaine Lawson, the appellee was driving her automobile in an easterly direction on 23rd Street in the City of Birmingham, and approached the intersection of that street with Avenue G. The intersection was not controlled by any stop sign or traffic signal. The neighborhood was a residential one. Appellee had been driving fifteen to twenty miles per hour, but at a point about fifty feet from the intersection she slowed down and came to a complete stop. The northwest corner of the intersection which was the corner inside the angle made by the two vehicles on their approach was vacant and appellee could see as far as half a block in this direction which was to her left on Avenue G. After appellee stopped, she looked in all directions, did not see a car coming and she started across the street. A collision then occurred when the front of appellant's car struck the left side of appellee's car while both cars were within the intersection; thereafter the two vehicles moved a distance of thirty-seven feet before coming to a stop.

Immediately prior to the collision the appellant, who lived two blocks from the intersection, was travelling in a southerly direction on Avenue G at a rate of speed of thirty to thirty-five miles per hour. Appellant saw appellee who was on appellant's right, approaching the intersection; appellant then looked to her left. It appears that appellee entered the intersection prior to the entrance of appellant. Appellant did not, however, slacken her speed, blow the horn or stop, nor did she apply her brakes at any time prior to the collision. While it is not clear at what point the appellant first saw appellee, it is clear that the appellee first approached the intersection. It further appears that the left side of appellee's car was eighteen feet from the west curb of Avenue G, a street thirty-two feet in width, at the point of the impact.

The pertinent traffic laws are: The maximum speed limit in this residential district is twenty-five miles per hour. Code of Alabama, 1940, Tit. 36, § 5; Birmingham City Code, § 1239(b)(6). Ordinarily, where two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left should yield the right of way to the vehicle on the right. Code of Alabama, 1940, Tit. 36, § 18(a); Birmingham City Code, § 1253(b). The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different street. Birmingham City Code, § 1253(a). Further, the driver of a vehicle should ordinarily drive upon the right half of the street. Code of Alabama, 1940, Tit. 36, § 9.

It is clear from the foregoing that the jury could have found that appellee had the 'right of way.' The appellant, therefore, was under a duty to 'exercise a degree of care commensurate with the superior right of the other to observe the car of the other, its speed, position, and operation, and to wait until it has passed before attempting to cross the intersection.' 2 Blashfield, Cyc. of Automobile Law and Practice, § 1025, p. 289. The driver is 'presumed to know that a vehicle approaching a street intersection from his right has the right of way, and is under the duty of looking to the right for automobiles approaching from that direction.

'* * * '* * * observation should be made at the first opportunity and at a point where observation will be reasonably efficient for, and conducive to, protection.' 2 Blashfield, supra, §§ 1037, 1038, pp. 351, 352, 357. See also Echols v. Vinson, 1929, 220 Ala. 229, 124 So. 510; 3-4 Huddy, Automobile Law, §§ 154, 155; 5 Am.Jur., Automobiles, § 291; 60 C.J.S., Motor Vehicles, § 363.

We take cognizance, of course, of the fact that while the appellee may have been etitled to the right of way, this would not relieve her of the general duty of exercising due care not to injure others at the crossing. Ray v. Brannan, 1916, 196 Ala. 113, 72 So. 16; Allen v. Zickos, 1953, 37 Ala.App. 361, 68 So.2d 841.

But viewing the evidence most favorable to the plaintiff, as is our duty, we are fully persuaded that there was no error in submitting to the jury the counts charging negligence and that the court ruled properly in refusing the affirmative charges in respect thereto.

It is also contended by appellant that the court improperly submitted to the jury the wanton count. We are unable to agree. There of course must be evidence to show or create a reasonable inference that the appellant had knowledge of appellee's peril and of the probable consequences of her conduct and with reckless disregard of such consequences she pursued that conduct. Knowledge, however, need not be shown by direct proof. It may be made to appear like any other fact by showing circumstances from which the fact of actual knowledge is a legitimate inference. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505; Allison Coal and Transfer Co. v. Davis, 221 Ala. 334, 129 So. 9; Duke v. Gaines, 224 Ala. 519, 140 So. 600.

Stated another way, a willful or intentional injury may not necessarily be involved in wantonness. It may...