Sparks v. Southeastern Greyhound Lines, Civ. No. 1135.

• Citation: 173 F. Supp. 896
• Decision Date: 05 June 1959
• Docket Number: Civ. No. 1135.
• Parties: Howard SPARKS, Administrator, Plaintiff, v. SOUTHEASTERN GREYHOUND LINES (The Greyhound Corporation), Defendant.
• Court: U.S. District Court — Northern District of Mississippi

173 F. Supp. 896

Howard SPARKS, Administrator, Plaintiff, v. SOUTHEASTERN GREYHOUND LINES (The Greyhound Corporation), Defendant.

Civ. No. 1135.

United States District Court N. D. Mississippi, E. D.

June 5, 1959.

Cunningham & Cunningham, Booneville, Miss., Cary Stovall, Corinth, Miss., for plaintiff.

Lumpkin, Holland & Ray, Tupelo, Miss., Shepherd, Heiskell, Williams, Beal & Wall, Memphis, Tenn., for defendant.

CLAYTON, District Judge.

This is an action for damages under § 123, Title 7, Code of Alabama, 1940, arising from the death of Johnny A. Sparks, a single man 25 years old. He died August 3, 1958, in an intersection collision between an automobile, occupied by Sparks and Charles Dickinson, and a bus operated by defendant. Plaintiff is administrator of the estate of Johnny A. Sparks. Defendant was designated as Southeastern Greyhound Lines in the complaint, but, as appears from the answer, its correct corporate title is The Greyhound Corporation. Plaintiff alleged that Dickinson was the driver of, and Sparks a guest in the automobile and that the collision was caused by the high speed of the bus and the failure of its driver to have the bus under control, to keep a proper lookout, to apply the brakes, to turn the bus away from the automobile and to sound the horn as the bus approached the intersection. Defendant denied any negligence of its bus driver and alleged that Sparks was the driver of the automobile, or chargeable with the actions of the driver thereof, and that the driver was guilty of all the negligence causing the collision consisting of high speed and failure to keep a lookout and failure to stop at a stop sign before entering the intersection. Counterclaim was filed for the damage to the bus on the allegation that Sparks was the driver of the automobile and that his negligence, as in the answer, caused the collision. Plaintiff answered in accord with the complaint and trial was had to the court.

1) The collision occurred in the intersection of U. S. Highway 78 and Alabama Highway 19. In this vicinity Highway 78 runs generally east and west and Highway 19 runs generally north and south. The intersection of these highways is almost at right angles. Defendant's bus was westbound on Highway 78, while the automobile was northbound. In approaching the intersection from the south the automobile was ascending a grade with about the same degree of slope for approximately 940 feet, rising in that distance, about 22 feet. The bus, coming from the east, at about 900 feet away from the intersection, was at the crest of a rise slightly higher than the intersection and as it approached the intersection, it went downhill to a point approximately 9 feet lower than the intersection. From this low point, about 500 feet east of the intersection, the bus ascended a grade of approximately uniform slope to the intersection.

2) In the southeast quadrant formed by this intersection the ground was higher than the surface of the intersection and higher than the surface of either highway approaching the intersection. This high ground was topped by trees and undergrowth. As shown by the photographs introduced, some of these trees, pine and oak, were more than 20 feet tall. At a point 50 feet south of the center line of Highway 78 and on Highway 19 this ground was about 8.2 feet above the surface of the highway. At a point 50 feet east of the center line of Highway 19 and on Highway 78, it was 7.2 feet above the roadway. This high ground and the growth thereon restricted seriously the visibility to the left, for a vehicle driver approaching on Highway 78 from the east, and to the right of such a driver, approaching from the south on Highway 19.

3) Both highways were surfaced with rough macadam asphalt for about 20 feet of width. Within the intersection this surfacing aproned out for a width of approximately 65 feet from edge to edge, northeast to southwest, and about 55 feet, northwest to southeast. The apron was further extended to the northeast by gravel to about 30 feet at its widest place and to the northwest in the same way by approximately 40 feet. To the southeast the gravel, extending the asphalt, was about 25 feet, at its widest, and to the southwest about 20 feet. In the northeast quadrant, slightly less than halfway from Highway 78 to Highway 19, a local gravel road about 20 feet in width ran to the northeast, from the gravel extension of the asphalt apron.

4) On Highway 78, more than 1100 feet east of the intersection, there was a sign showing that ahead there was a junction with Highway 19; 887 feet east there was a sign cautioning "Slow" and warning of the intersection; about 530 feet east there was a speed limit sign showing 40 miles per hour and warning of the intersection; about 320 feet east was a direction sign and about 125 feet east was a Highway 19, north-south sign.

5) On Highway 19, south of the intersection at about 900 feet was a sign showing a junction with Highway 78 ahead; about 720 feet was a sign cautioning "Slow" and warning that an intersection was ahead; at about 530 feet was an intersection and stop warning sign; about 300 feet there was a direction sign and about 30 feet south of the center line of Highway 78 was a "Stop" sign.

6) The point of impact between the automobile and bus was just north of the center-line of Highway 78 east of the center of Highway 19. Distinct marks, undulations, were made there by the front wheels of the automobile. The right front portion of the automobile and the left front corner of the bus collided. The bus left the highway to the northwest and came to rest about 185 feet from the point of impact. It made no mark off the highway for a distance of about 57 feet beyond the shoulder line, which was on a fill of approximately 10 feet at this place. It knocked down a tree about 6 inches in diameter, overturned and stopped against another tree. This was about 75 feet north of the center-line of Highway 78. After the collision, the bus was not considered repairable, but had some salvage value.

7) The demolished automobile left the highway to the southwest. Its motor was torn out and stopped about 87 feet from the point of impact and about 47 feet south of the center-line of Highway 78. The rest of the automobile came to rest about 47 feet west of the motor. Dickinson and Sparks were both killed. One body was about 111 feet west of the point of impact near the north edge of the asphalt of Highway 78. The other body was about 15 feet south of the wrecked automobile.

8) No witness was produced who could say which occupant of the automobile was the driver. The automobile belonged to the father of Charles Dickinson, who allowed his son to use it for his pleasure, but on condition that he allow no one else to drive it. Four witnesses testified that when this automobile left a public gathering a short time before the collision, Dickinson was driving and Sparks was sitting beside him.

"When a fact continuous in its nature is proved to exist, its continuance may be presumed until the contrary is shown." Garner v. Green, 8 Ala. 96.

This seems to be a succinct statement of the applicable rule in most jurisdictions. 31 C.J.S. Evidence § 124, p. 736; 20 Am. Jur. 205. Thus, it may be presumed that Dickinson continued to drive the automobile until the collision. This presumption is further strengthened by the fact that the report submitted and signed by the two Highway Patrolmen identified the driver of the automobile as Dickinson and by witnesses for plaintiff who testified that it was the invariable custom of Dickinson to drive "his" automobile when he was using it and for Sparks to drive his, Sparks', automobile when he was riding in it. This was true when these two kinsmen were together. Objection was made to this evidence by defendant and ruling was reserved. This evidence was admissible and is considered by this court as circumstantial evidence tending to support the theory that Dickinson was the driver. Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77; Bastian v. Baltimore & O. R. Co., 3 Cir., 144 F.2d 120; Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So. 2d 389; Bridges v. Graham, 246 N.C. 371, 98 S.E.2d 492; Stegall v. Sledge, 247 N.C. 718, 102 S.E.2d 115; Moore v. Watkins, Tenn.App., 1956, 293 S.W.2d 185 and Robinson v. Workman, 9 Ill.2d 420, 137 N.E.2d 804. See also Rodney v. Staman, 371 Pa. 1, 89 A.2d 313, 32 A.L.R. 2d 976 and the note following that case.

9) Four witnesses who knew Dickinson and Sparks identified the body found near the north edge of Highway 78 as the body of Sparks. Sparks had red hair, Dickinson had dark hair. Some particles of red hair were found on the right door opening of the wrecked automobile. Identification of these bodies, at the undertakers, some time after the collision, by an Alabama Highway Patrolman seems just the reverse. But, his testimony is based on hearsay or is in fact hearsay, as it bears on the identity of the bodies, and this was after the bodies had been removed and transported by two different people in two different ambulances. Such doubt as may thereby be raised is insufficient, when all of the circumstances are considered, to forestall the finding of fact that Dickinson was driving and Sparks was a guest in the automobile.

10) It is uncontradicted that the automobile failed to stop for the "Stop" sign at the south entrance to this intersection. It laid down skid marks about 35 feet in length. These began just south of the "Stop" sign and ended at the point of impact, about 2 feet north of the center-line of Highway 78. Its speed was variously fixed from 30 to 40 miles per hour, to, as one witness said, "terrific". From the skid marks and testimony it seems clear that this automobile entered the intersection at a speed no less than 40 miles per hour. The driver of this automobile was negligent. But, there is no evidence which tends to show that Sparks, at any time, had knowledge of...