Terminal Transport Co. v. Foster, 12024.
| Decision Date | 21 November 1947 |
| Docket Number | No. 12024.,12024. |
| Citation | 164 F.2d 248 |
| Parties | TERMINAL TRANSPORT CO., Inc., v. FOSTER. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Francis H. Hare, of Birmingham, Ala., for appellant.
Wade H. Morton, of Birmingham, Ala., for appellee.
Before McCORD, WALLER, and LEE, Circuit Judges.
The plaintiff, under the Alabama homicide statute, Code 1940, Tit. 7, § 119, recovered a judgment against the defendant for the wrongful death of plaintiff's child. The deceased child, a girl five years old, was alleged to have been killed as a result of the negligence of one Sam Hardeman, a truck driver employed by the defendant, while acting within the line and scope of his employment. The complaint contained two counts; the first for simple negligence, and the second for wanton injury, resulting in death.
The defendant interposed two defenses: (1) the general issue, and (2), that if one of its motor vehicles was involved in the accident which caused the death of plaintiff's child, the defendant's agent or servant operating its truck had deviated from his employment and was pursuing an independent and personal errand of his own.
The evidence shows that the deceased child, with an elder brother of the age of thirteen years, had walked along 12th Street South, in Birmingham, Alabama, for a distance of approximately one-half block, and they had then turned into and walked along Avenue C, hand in hand, for a short distance, when a truck traveling in the same direction overtook them and ran over the deceased, Lucile Foster, and killed her. The truck ran close to Jesse, the brother, but he fell backwards and away from the truck and thereby escaped injury. After the accident Jesse ran immediately to the aid of his stricken sister, and was consequently unable to describe the truck, except as to general color and type. There was evidence that the driver did not blow his horn as he overtook the children, and that the truck was upon them before they were aware of its presence. The driver did not stop at the scene of the accident, but continued along Avenue C to 11th Street South and there turned left in a southerly direction. Jesse testified that after the truck passed the place where the accident occurred a negro man opened the left door of the driver's cab and looked back. The speed of the truck at the time of the accident ranged from ten to thirty-five miles per hour, according to the testimony of several witnesses. Two witnesses identified the truck as belonging to the defendant, and the driver was identified by another witness as Sam Hardeman, an employee of defendant. The accident occurred at approximately 9:30 A.M., and it was shown that no other trucks or vehicles were parked near or passing by the scene of the accident at this time. It was further shown that there were some packages in the truck at the time of the accident which the driver was delivering for the defendant in various sections of the city. The evidence was in dispute as to whether packages were being delivered in the vicinity of the accident at the time the child was killed.
The defendant offered evidence tending to show that its truck driven by Sam Hardeman was not the truck involved in the accident. Two witnesses testified that at the time the accident occurred they saw the defendant's truck and driver delivering packages in a section of the city relatively far removed from the scene of the accident. The defendant's manager further testified that neither the truck nor the driver had any business or errand for the defendant in the vicinity of the accident at the time it took place.
Appellant assigns as error the action of the trial court in permitting counsel for plaintiff to ask Sam Hardeman, the defendant's...
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United States v. CL Guild Construction Co.
...is merely representative of the view followed by a meager minority of the jurisdictions of this country. Terminal Transport Co., Inc. v. Foster, 5 Cir., 1947, 164 F.2d 248, also cited by the Government, was a civil case and is readily distinguishable from the instant case. In United States ......
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United States v. Maynard
...329, 334-335 (2d Cir. 1957). 16 Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). 17 See Terminal Transport Co. v. Foster, 164 F.2d 248 (5th Cir. 1947), a civil case for wrongful death which involved the impeachment of the alleged wrong-doer with the fact that he had......
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United States v. Lester
...247, 36 So. 380; it may be shown that the witness is under indictment for the acts he has denied in his testimony, Terminal Transport Co. v. Foster, 5 Cir., 164 F.2d 248; and it is permissible to show that contrary testimony would subject the witness to criticism by his superiors, Atlantic ......
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United States v. Colonial Motor Inn, Inc., 7794.
...v. Lester, 2 Cir., 1957, 248 F.2d 329; Atlantic Coast Line R. R. v. Dixon, 5 Cir., 1953, 207 F.2d 899, 904; Terminal Transport Co. v. Foster, 5 Cir., 1947, 164 F.2d 248, 249. The defendant's so-called offer of proof left something to be desired, had a strict offer of proof been called for. ......