Smith v. Lilley

• Decision Date: 13 May 1949
• Docket Number: 1 Div. 344.
• Citation: 41 So.2d 175,252 Ala. 425
• Parties: SMITH v. LILLEY.
• Court: Alabama Supreme Court

41 So.2d 175

252 Ala. 425

SMITH v. LILLEY.

1 Div. 344.

Supreme Court of Alabama

May 13, 1949

Rehearing Denied June 23, 1949.

Appeal from Circuit Court, Mobile County; Joe M. Pelham, Jr. Special Judge. [Copyrighted Material Omitted]

D. R. Coley, Jr., of Mobile, for appellant.

Vickers Leigh & Thornton, of Mobile, for appellee.

The following charges were refused to plaintiff:

'5. The Court charges the Jury that if you are reasonably satisfied from the evidence that the Defendant knew or should have known that the Plaintiff's intestate or any other person would probably be on or going across the highway at the point where the accident occurred, then you should take that into consideration in determining whether his actions were those of a reasonably prudent man under the same circumstances.'

'12. The Court charges the Jury that if you are reasonably satisfied from the evidence that the Defendant's automobile skidded on the highway after the brakes were applied by the Defendant for a distance of more than 75 feet before it struck the Plaintiff's intestate, you may take that fact into consideration in determining whether or not the Defendant was exercising reasonable care and prudence in the operation of the automobile at the time complained of.'

'18. The Court charges the Jury that if you are reasonably satisfied from the evidence that at the time of the accident complained of the Defendant was operating his automobile at an excessive and unreasonable speed, and that as a result thereof he was unable to avoid striking the Plaintiff's intestate, then he was guilty of negligence.'

These charges were given at defendant's request:

'4. I charge you gentlemen of the jury that the fact that W. T. Smith died is not to be taken into consideration by you in arriving at any verdict in this case.

'5. I charge you gentlemen of the jury that if you are reasonably satisfied from the evidence in this case that W. T. Smith started across Highway 90 on the evening of December 3rd, 1946, without looking up or down the highway for approaching automobiles, and if you are further reasonably satisfied from the evidence that W. T. Smith did not exercise due and reasonable care in crossing the highway at that time and place, and that the failure to look and exercise such due care proximately caused W. T. Smith to be struck by defendant's automobile, you cannot find for plaintiff'.

STAKELY Justice.

This suit was originally brought by W. T. Smith against Patrick E. Lilley, Jr., to recover damages for injuries alleged to have been suffered by the plaintiff when he was struck on December 3, 1946, by an automobile owned and operated by the defendant. The plaintiff died on August 28, 1947 and the suit was revived in the name of Ila R. Smith, Executrix of the estate of W. T. Smith, deceased. The pleas of the defendant were the general issue and contributory negligence. Trial of the cause resulted in a verdict and judgment for the defendant. This appeal is from that judgment.

The accident occurred after dark at about 6 P.M. at a point on Highway 90, the main highway leading from Mobile to New Orleans. The deceased W. T. Smith was about 64 years of age and was employed as a bookkeeper in the City of Mobile. He commuted daily to his home. The accident took place just in front of his house which was located on the east side of the highway. He had ridden the bus from Mobile and alighted on the west side of the highway. At this point there was a stand for the sale of pralines, pecans, etc., on which bright lights were burning. The bus pulled away and he stood on the shoulder of the road which was on the west side of the highway talking to a friend. He then started across the paved part of the highway which was about 18 to 20 feet wide to go to his home. At the side of his home there was also a stand for the sale of pralines, pecans, etc., which was also well lighted.

The defendant in his car had come around a curve located about 1,000 feet north of the point where W. T. Smith stood and was approaching on his righthand side of the road. Tendencies of the evidence showed that he could not have seen W. T. Smith until within about 200 to 300 feet of him because 'the road rolls off there and those stands are just on the other side of the roll.' Tendencies of evidence further showed that when the defendant first noticed W. T. Smith, he was on the righthand side of a little fruit stand apparently talking to someone and was moving toward the pavement with his head turned back toward the man he was talking to. Tendencies of the evidence further showed that at that time the defendant was about 200 feet away and pulled a little to the left. Tendencies of the evidence further showed that when the defendant was about 75 feet away, W. T. Smith started walking across the pavement looking straight ahead. Tendencies of evidence further showed the defendant was travelling between 45 to 50 miles per hour when he first saw Smith. He then took his foot off the accelerator and travelled in this way about 100 feet. The defendant could not say whether he gave any signal to Smith, except that he blinked his lights. He applied his brakes when he saw Smith start across the pavement. He was then 75 feet away. The brakes 'screamed.' Smith stopped when he heard the brakes and threw out his hand and, according to tendencies of the evidence, 'kind of jumped back.' The car caught him on the extreme lefthand point of the car and shoved him out of the way after the car had cut back when the defendant attempted to cut back to get behind him. According to the defendant if Smith had kept going, the car would have missed him. The defendant's car went just a few feet after it struck Smith. The car had not passed a full length beyond Smith, Smith being about even with the back seat. He fell just off the edge of the pavement on the shoulder. After the accident the defendant jumped out of the car and with another man picked Smith up and the defendant asked him if he was badly hurt. Tendencies of the evience showed that 'he mumbled and said, let me sit down, and we took him to the bench there.' According to the defendant, the defendant asked him to go with him to the hospital and Smith replied, 'No, I will be all right, go ahead.' To which defendant replied, 'I cannot go and leave you.' According to the defendant Smith further said, 'You go ahead. I will be all right. I will have to be more careful about looking where I go.' Tendencies of the evidence showed that the defendant then moved his car which 'was smack in the middle of the road.'

Ira Lee Ferris, witness for the plaintiff, was the man to whom W. T. Smith was talking when standing by the praline stand at the side of the highway. He testified that before W. T. Smith started to cross, he looked both ways. He further testified as follows:

'Q. Did you carry on any further conversation with him after he started across? A. No.

'Q. Were you watching him, or were you watching the cars? A. Both.

'Q. You saw Mr. Lilley's car coming? A. I saw the headlights.

'Q. Was Mr. Smith watching that car? A. After he looked up the road, I don't think he ever looked again.

'Q. But you did? A. Yes.

'Q. And you didn't say a word to Mr. Smith? A. No, I just couldn't say a thing. I have thought of that a thousand times.

'Q. Did he ever look to his left? A. Just after the car got to him.'

Assignments of error are based on the action of the court (1) in giving or refusing certain written charges and (2) certain rulings of the court on the evidence.

Assignment 1. It is argued that the plaintiff was entitled to the general affirmative charge, which the court refused to give. The court was not in error in this regard. Negligence of the defendant is sought to be predicated either on excessive speed under the circumstances or failure to give warning of his approach or driving on the wrong side of the highway. Sections 5, 36 and 9, Title 36, Code of 1940. But in order to be entitled to the affirmative charge not only must the defendant be guilty of negligence as a matter of law, but as a matter of law such negligence must have proximately contributed to plaintiff's injuries and plaintiff must have been free as a matter of law from contributory negligence. All of these issues were essential and we think clearly presented questions of fact for the jury. Brown v. Yielding, 206 Ala. 504, 90 So. 499; ...