Thompson v. Magic City Trucking Service

• Decision Date: 30 May 1963
• Docket Number: 6 Div. 904
• Parties: Bessie B. THOMPSON et al. v. MAGIC CITY TRUCKING SERVICE et al.
• Court: Alabama Supreme Court

Page 306

154 So.2d 306

275 Ala. 291

Bessie B. THOMPSON et al. v. MAGIC CITY TRUCKING SERVICE et al.

6 Div. 904.

Supreme Court of Alabama.

May 30, 1963.

Spain, Gillon & Young, Foster Etheredge and H. H. Grooms, Jr., Birmingham, for appellants.

Rives, Peterson, Pettus & Conway, Birmingham, for appellees.

MERRILL, Justice.

This is an appeal from a judgment for defendants in a suit under the death statute. The plaintiffs-appellants are the dependent sister and brother of the deceased, Charles Bradley. The defendants-appellees are Magic City Trucking Service and the driver of one of their dump trucks, Guy P. Norton.

The case was tried on Count 3--simple negligence, and Court 4, charging wantonness, but the court gave the general affirmative charge with hypothesis as to Court 4.

The deceased Bradley was a member of a crew of workmen employed by Southern Amiesite Asphalt Company, which was repaving a section of Highway 69 between Cullman and Jasper. The crew operated an asphalt spreader, known as a Barber-Greene, and three rollers. The asphalt spreader has a box in front of it which is kept filled by dump trucks backing up to the front of the spreader and dumping asphalt into the box. While the truck is unloading, the spreader propels itself forward, pushing the truck ahead as it moves, and the truck continuously dumps asphalt into the box as they both roll along at about four miles per hour. When the dump truck is empty, it immediately moves forward to clear the way for a waiting truck to take its place. The aim is to always keep asphalt in the box so that the spreader continues to move at all times. The spreader can only move about twelve feet on one box full of asphalt.

The rollers work behind the spreader and they smooth and press down the new asphalt. For some unexplained reason, Bradley was off his roller and he got between the back of Norton's truck and the spreader as Norton was backing his truck toward the front of the spreader to fill the asphalt box. The left rear wheels of the truck ran over Bradley and he was killed.

The lane of the highway on which the spreader and crew were working was closed to traffic and no one was supposed to be using that lane except the resurfacing crew and the highway department inspectors.

The primary dispute in the evidence concerned whether any signal was required or customary to call a new truck load of asphalt to move in toward the spreader. Nine witnesses testified that no signal was customary or required by the driver of the waiting truck to back toward the spreader immediately upon seeing the empty truck move out. Two witnesses testified that it was the custom for the drivers of trucks not to move into the box on the spreader until they were motioned by hand signal from one of the crew.

Appellants main argument is assignment of error number 6 which charges error in the giving of charge 26, which reads:

'I charge you that if you are reasonably satisfied from the evidence in this case that under all of the circumstances and conditions existing at the time of the incident made the basis of this suit, the danger of being struck by a backing truck loaded with asphalt at the time and place where Mr. Bradley was injured was an obvious danger, of which the deceased Mr. Bradley knew or in the exercise of reasonable care should have known, then I charge you that the defendant Mr. Norton had a right to assume that the deceased Mr. Bradley would observe that danger and guard against it. I further charge you that if you are reasonably satisfied from the evidence that Mr. Norton backed his truck in reliance on the assumption that Mr. Bradley would observe and guard against such danger, then backing the truck under such circumstances and conditions would not constitute negligence on the part of Mr. Norton.'

We cannot agree that the giving of the charge amounted to reversible error. Appellants argue that the charge is faulty in many respects, but we deem it necessary to answer only two. Appellants maintain that the charge is bad because of the use of the words 'or in the exercise of reasonable care should have known,' citing Jones v. Pioneer Mining & Mfg. Co., 149 Ala. 402, 42 So. 998; Osborne v. Alabama Steel & Wire Co., 135 Ala. 571, 33 So. 687; Alabama Great Southern R. Co. v. Brooks, 135 Ala. 401, 33 So. 181; Lockhart v. Sloss-Sheffield Steel & Iron Co., 165 Ala. 516, 51 So. 627, and Owen v. Hampson, 258 Ala. 228, 62 So.2d 245.

These cases are concerned with pleadings, and indicate that the use of an alternative averment 'or in the exercise of reasonable care should have known' is bad where the facts alleged in the pleading are insufficient to support the alternative averment made as a conclusion. Here, the charge leaves to the reasonable satisfaction of the jury the question of whether the facts support that conclusion.

In essence, charge 26 says that it is not negligent to act in reliance upon the assumption that others will exercise due care with respect to their own safety as against obvious danger. We have held, in connection with vehicular traffic, that one has the right to rely upon the assumption that others (adults) will exercise reasonable care. Vansandt v. Brewer, 209 Ala. 131, 95 So. 463; Hammel Dry Goods Co. v. Hinton, 216 Ala. 127, 112 So. 638; Johnston v. Weissinger, 225 Ala. 425, 143 So. 464. And in the absence of circumstances showing the contrary, an adult is generally presumed to be in possession of the normal faculties of mind and body, including the senses of sight and hearing. Vansandt v. Brewer, supra.

We have also held that if a person had knowledge of facts sufficient to warn a man of ordinary sence and purdence of the danger to be encountered, and of the natural and probable consequences of his own conduct in the premises, then he was guilty of negligence if he failed to exercise ordinary care to discover and avoid the danger and the injury. Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979; Walker County v. Davis, 221 Ala. 195, 128 So. 144; Railway Express Co. v. Real, 253 Ala. 489, 45 So.2d 306.

Appellants argue that charge 26 is incomplete and misleading. The giving of a charge which merely has a tendency to mislead does not constitute error, and the remedy, when a misleading or incomplete charge is given, is to request an explanatory charge. Jacks v. City of Birmingham, 268 Ala. 138, 105 So.2d 121; Farr v. Blackman Plumbing & Heating Co., 267 Ala. 585, 103 So.2d 777.

Under the facts of this case and the authorities cited, the court did not err to reversal in the giving of charge 26.

Appellants argue that the trial court erred in giving the affirmative charge with hypothesis in favor of appellees as to the wanton count. We cannot agree. It is true that the driver of the dump truck, Norton, testified that he did not sound his horn as he was backing toward the spreader, and that he could not see the area to the rear of his truck so far as the right side was concerned. But he was moving at three to four miles per hour, looking back, with his left door open and his head out of the cab, driving in the normal method used by all the other trucks in the operation and in a place closed to traffic and all persons not connected with the operation.

In our opinion, the evidence does not support an inference of wanton conduct, that is, that Norton, with reckless indifference of the consequences, consciously and intentionally did some wrongful act or omitted some duty which produced the death of plaintiffs' brother. These essential elements of wantonness were left to conjecture. Zemczonek v. McElroy, 264 Ala. 258, 86 So.2d 824, and cases there cited.

Assignment of error 18 involved the overruling of appellants' objection to a question propounded to appellees' witness, Ralph W. Johnson, which read:

'Mr. Johnson, could you tell us what were the customs, practices and procedures in that business at that time with respect to when...