Tucker v. Cox
| Decision Date | 18 July 1968 |
| Docket Number | 4 Div. 315 |
| Citation | 213 So.2d 222,282 Ala. 489 |
| Parties | Jackie W. TUCKER v. Linda COX, pro ami. |
| Court | Alabama Supreme Court |
Joe C. Cassady, Enterprise, for appellant.
G. A. Lindsey, Elba, for appellee.
Appellee, a minor in the tenth grade, was a guest in an automobile that was involved in a collision at an intersection in Elba. She sued, by next friend, the drivers of both automobiles and recovered a judgment for $10,000. Jackie Tucker, the driver of the Volkswagen in which she was riding, made a motion for a new trial, which was overruled, and he appealed.
The single count in the complaint charged wantonness. When the case was called for trial, defendant Carol Snell Hargrove, the driver of a Falcon, the other car involved in the collision, did not appear and her attorney withdrew and there was no further appearance for her in the trial.
The three assignments of error charge that the court erred in (1) refusing to give the requested affirmative charge for appellant without hypothesis; (2) refusing to give the affirmative charge with hypothesis; and (3) refusing to grant the motion for a new trial.
The basis for requesting the affirmative charges was that there was no proof of wantonness.
Wantonness has been defined as 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. Barnes v. Haney, 280 Ala. 39, 189 So.2d 779; Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448, and cases there cited.
What constitutes wanton conduct depends upon the facts in each particular case. Barnes v. Haney, supra; Lewis v. Zell, 279 Ala. 33, 181 So.2d 101.
Other definitions of wantonness are stated in Wilhite v. Webb, 253 Ala. 606, 46 So.2d 414.
Some of the evidence is in conflict, but we are here interested only in that part of the evidence or the tendencies thereof from which the jury could have found wantonness.
The collision occurred at the intersection of North Smith Street and Highland Drive in Elba on a clear, cold night, December 4, 1965. North Smith Street runs north and south and Highland Drive runs east and west. From the intersection east, Highland Drive is two-laned with an 8 to 10 foot median separating the lanes. There were no traffic control lights or 'Stop' signs at the intersection when the collision occurred.
Defendant Hargrove was driving her Falcon south along North Smith Street, had entered the intersection, crossed the north lane of Highland Drive, passed the median and was in the south lane of Highland Drive when her Falcon was struck on the right front side by the Volkswagen, driven by Tucker, as he was going east along Highland Drive. From the point of impact, Tucker's Volkswagen made a 90 degree turn and traveled south 51 feet and the Falcon traveled 41 feet east up a 3 to 5 foot embankment. The only obstruction to view at the intersection was the office building of Dr. Cooper at the northwest corner of the intersection. Appellant Tucker lived in Elba, he knew that the hospital was located near the intersection, that it was a residential area and that at this time of night, there would usually be a lot of traffic around that intersection; he expressed it The speed of his car was variously estimated by witnesses as being from 25 to 40 miles per hour. Therefore, the jury could conclude that he was driving through this usually heavily traveled intersection, unmarked by traffic signs, and with his view of oncoming traffic from the left partially obscured by the doctor's office, at a speed quite in excess of the 15 miles an hour...
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