Taylor v. Thompson

• Decision Date: 30 June 1960
• Docket Number: 6 Div. 461
• Parties: James Ray TAYLOR v. James S. THOMPSON.
• Court: Alabama Supreme Court

Page 277

122 So.2d 277

271 Ala. 18

James Ray TAYLOR v. James S. THOMPSON.

6 Div. 461.

Supreme Court of Alabama.

June 30, 1960.

Chas. E. Sharp and Sadler, Sadler, Sullivan & Herring, Birmingham, for appellant.

London, Yancey, Clark & Allen, Birmingham, for appellee.

MERRILL, Justice.

Appellant, plaintiff below, sued appellee for $50,000 for bodily injuries received by him while driving his automobile on First Avenue North, at or near an intersection with Division Avenue in Birmingham.

Count 1 alleged simple negligence and Count 2 alleged wanton misconduct. Demurrer being overruled, appellee entered a plea in short by consent.

Upon conclusion of the testimony, the court gave the affirmative charge as to the wanton count. The case was submitted to the jury on Count 1 and verdict was for the defendant. Motion for a new trial was denied.

The main insistence is that the court erred in withdrawing the wanton count from the jury.

Plaintiff and defendant were traveling west on First Avenue North in the Roebuck section of Birmingham, about 2:00 o'clock on a Saturday afternoon. At that point, First Avenue is a four lane highway, the middle lanes being separated by a grass division. Plaintiff was in the right or north lane, defendant was in the left or south lane, some distance back east of plaintiff's car. Plaintiff switched from the north lane to the south lane in order to make a left turn into Division Avenue. Plaintiff testified that there were three automobiles in the south lane to his rear as he prepared to switch lanes. The lead car passed him on his left, the middle car passed him on his right, and when he had stopped in the left lane at the intersection, defendant's car hit plaintiff's car in the rear and knocked it some ten to twenty feet.

The defendant testified that he had seen plaintiff's car in the north lane some quarter of a mile back toward Gadsden, and the next time he saw it was when the car immediately in front of him swerved to the right and plaintiff's car was immediately in front of him. Defendant was following about a car's length behind the car which swerved to the right; he was going about forty miles per hour; he put on his brakes, one skid mark measuring sixty-three feet, the other thirty feet, and the front of his car hit the rear of plaintiff's car. The street was dry. Defendant, who lived in Gadsden, had traveled First Avenue North 'quite a few times' to visit relatives in Birmingham. There was a thirty mile per hour speed limit sign somewhere in the vicinity but its precise location is not definite from the record. It was undisputed that appellee's car was in fair mechanical condition and that appellee did not see appellant switch lanes and did not know that appellant's car was in the left lane or had stopped until the car immediately in front swerved around appellant's car.

We have defined wantonness as follows in Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505, 506:

'Wantonness is the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury. Duke v. Gaines, 224 Ala. 519, 140 So. 600; First National Bank of Dothan v. Sanders, 227 Ala. 313, 149 So. 848.'

A similar definition appears in Simon v. Goodman, 244 Ala. 422, 13 So.2d 679.

In our opinion, a case of simple negligence was made by the testimony, and this issue was properly submitted to the jury. It is also our opinion that the evidence did not support an inference of wanton conduct, that is, that appellee, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some duty which produced injury to appellant and to his vehicle. These essential elements of wantonness were left to conjecture. Zemczonek v. McElroy, 264 Ala. 258, 86 So.2d 824; Dean v. Adams, 249 Ala. 319, 30 So.2d 903; Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505; Smith v. Roland, 243 Ala. 400, 10 So.2d 367; Mi-Lady Cleaners v. McDaniel, 235 Ala. 469, 179 So. 908, 116 A.L.R. 639. See Kingry v. McCardle, 266 Ala. 533, 98 So.2d 44.

Assignment of error 8 charges that the court erred in charging the jury that they could find that the plaintiff was injured as a result of an unavoidable accident. We have held that neither the giving or refusal of 'unavoidable accident' or 'mere accident' charges constituted reversible error, but the better practice is to refuse them. Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516(19); Socier v. Woodard, 264 Ala. 514, 88 So.2d 783.

Assignment of error 12 charges error in the failure of the court to grant the motion for a new trial on the ground that the...