Standard Oil Co. v. Carter

• Decision Date: 20 December 1923
• Docket Number: 8 Div. 614.
• Parties: STANDARD OIL CO. v. CARTER.
• Court: Alabama Supreme Court

98 So. 575

210 Ala. 572

STANDARD OIL CO. v. CARTER.

8 Div. 614.

Supreme Court of Alabama

December 20, 1923

Rehearing Denied Jan. 24, 1924.

Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.

Action by Perkins B. Carter against the Standard Oil Company, for damages for personal injuries. From a judgment for plaintiff defendant appeals. Affirmed.

It is not error to refuse prayers or requested instructions covered or substantially covered by the instructions given.

Count 1 of the complaint is as follows:

"Count 1. The plaintiff claims of the defendant the sum of $3,000 for injuries received by plaintiff on, to wit, September 29, 1922. Plaintiff avers that on said date he was riding along a public street and thoroughfare in the city of Decatur, Ala., in a light, one-horse wagon, and the defendant's agent or employee was also driving along said throughfare in one of the defendant's motor trucks, and the defendant's said agent or employee acting within the scope of his authority, so negligently managed or operated the said automobile truck as to cause as a proximate consequence of such negligence the wagon in which said plaintiff was riding to be struck by said automobile truck, and plaintiff was thrown out of said wagon to the ground, and was severely hurt and bruised, a splinter of wood was thereby caused to be thrust through his thumb, and his right arm broken, and his face injured and bruised, and plaintiff was permanently injured and prevented from engaging in his employment, and thereby lost his salary for his daily work, and was caused to suffer great mental and physical pain; that plaintiff was thereby proximately caused to incur a doctor's bill for the treatment of his said injuries in the sum of $200, which he claims in this suit. Wherefore he sues."

Defendant's pleas 2, 3 and 4 are as follows:

"(2) That plaintiff was guilty of negligence proximately causing his injury in this: Said plaintiff in a horse-driven wagon and defendant's truck were both proceeding westerly along Market street, a public street, in the city of Decatur, Ala., on September 29, 1922, and that plaintiff saw and knew that defendant's truck was going in the same direction as he was going and approaching him from the rear, and would soon overtake and pass him, and defendant avers that it was the known duty of said plaintiff, as soon as practicable to turn to the right so as to allow free passage to defendant's truck on the left, and defendant avers that it was practicable for plaintiff to have turned to the right at the time he knew that the truck was about to pass him, and that said plaintiff negligently failed as soon as practicable to turn to the right so as to allow free passage to defendant's truck on his left, and as a proximate consequence of the aforesaid negligence of plaintiff he was injured.

"(3) Defendant avers that plaintiff was guilty of negligence proximately causing his injury in this: Said plaintiff was proceeding westwardly in a horse-drawn conveyance, and defendant's truck was to the rear of plaintiff, and also proceeding in a westwardly direction, and said plaintiff knew that defendant's truck was approaching and overtaking him, and with such knowledge said plaintiff negligently failed, as soon as it was practicable for him to do so, to turn to the right so as to allow defendant's truck free passage on the left, and as a proximate consequence of said negligence said plaintiff was injured.

"(4) Defendant avers that plaintiff was guilty of negligence proximately causing his injury in this: Said plaintiff was proceeding westwardly in a horse-drawn conveyance, and defendant's truck was to the rear of plaintiff, and also proceeding in a westwardly direction, and said plaintiff knew that defendant's truck was approaching and overtaking him, and with such knowledge said plaintiff so negligently continued to drive his horse in a straight forward way, and as a proximate consequence of such negligence was injured."

These requested charges were refused to defendant:

"(12) If you are reasonably satisfied from the evidence that plaintiff knew that defendant's truck was approaching him from the rear and overtaking him, then I charge you that it was his duty as soon as practicable to turn to the right so as to allow free passage to defendant's truck on the left."

"(14) I charge you, if you believe from the evidence that both plaintiff and defendant's truck were traveling in the same direction along the same street, and that defendant's truck was driven at a faster rate of speed than plaintiff, and that plaintiff saw and knew that defendant's truck was approaching him from the rear, and would soon overtake him, then, I charge you, that it was the duty of the plaintiff, as soon as practicable, to turn to the right so as to allow free passage to the defendant's truck on the left, and if you believe that plaintiff negligently failed to turn the right, and as a proximate consequence thereof the collision occured, then I charge you that the plaintiff was guilty of negligence which would defeat his recovery in this case.

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