Tyler v. Drennen
| Decision Date | 01 March 1951 |
| Docket Number | 6 Div. 81 |
| Citation | 255 Ala. 377,51 So.2d 516 |
| Parties | TYLER v. DRENNEN. |
| Court | Alabama Supreme Court |
Gibson & Hewitt, of Birmingham, for appellant.
Davies & Williams, of Birmingham, for appellee. The following charges were given for defendant.
'5. If you are reasonably satisfied from all the evidence in this case that the defendant was driving his automobile in a reasonably careful and prudent manner at the time of the accident, then your verdict should be for the defendant.
'6. If you are reasonably satisfied from all the evidence in this case that at the time of the accident the defendant was driving his automobile in a careful and prudent manner and in the manner in which a reasonably prudent man would have driven his automobile under the same or similar circumstances, then your verdict should be for the defendant.
'8. If you are reasonably satisfied from all the evidence in this case that the defendant at and immediately prior to the time of the accident drove his car as a reasonably prudent man would have driven his car under the same or similar circumstances, then your verdict should be for the defendant.
'10. I charge you, gentlemen of the jury, that if you are reasonably satisfied from all the evidence in this case that the damages complained of were the results of an unavoidable accident, then you cannot find for the plaintiff.
'12. I charge you, Gentlemen of the jury, that the statute setting out the recommended speed for residential districts in Alabama does not make such speed an unlawful act under all circumstances, but whether or not such speed is lawful depends upon the conditions then existing so that the speed shall not be dangerous or unsafe.
'13. The burden of proof is upon the plaintiff to show that the proximate cause of the plaintiff's damages were the direct result of the negligence of the defendant; if you are not reasonably satisfied from the evidence in this case that the plaintiff has proven such negligence on the part of the defendant as being the proximate cause of the plaintiff's damages, your verdict should be for the defendant.
'14. If you are reasonably satisfied from all the evidence in this case that the plaintiff was guilty of negligence which proximately contributed to the collision complained of, then you cannot find for the plaintiff under count one of this complaint.
'18. I charge you, gentlemen of the jury, that the driver of a car, desiring to make a left hand turn between intersections, should exercise extra precautions before attempting the left turn in order to see that such turn may be made in safety.
'20. If you are reasonably satisfied from all the evidence in this case that the plaintiff saw the defendant prior to making a left turn across the highway in front of the defendant, and you are further satisfied from all the evidence in this case that the plaintiff consciously made a left turn across the highway with reckless indifference to the consequences of such turn and with knowledge that her conduct would probably result in injury or damage to the defendant then you should find for the defendant on count two of his plea of recoupment.
'B.B. I charge you gentlemen, that the fact, if it be a fact, that defendant was driving his vehicle at a speed greater than 25 miles per hour, does not mean that said speed was unlawful, but it would be for you to say under all the facts and circumstances whether or not such speed was unlawful.'
Mrs. Bertha Calhoun Tyler (appellant) brought this action against Charles Edward Drennen (appellee) for damages growing out of an automobile collision. The complaint contained a count in simple negligence and a count alleging wantonness. The defendant filed two pleas seeking damages by way of recoupment, one plea alleging simple negligence and the other averring wantonness. Both defendant and the plaintiff respectively filed a plea of the general issue in short by consent with leave to give in evidence any matter which would be admissible if specially pleaded. Upon submission of the case to the jury the jury returned a verdict for the defendant. The plaintiff filed a motion for a new trial which was overruled by the court.
On Sunday, January 2, 1949, about 11 A.M. the appellant was driving her automobile to church. This was at or near Mt. Pinson on highway 38. At the point of the accident there is an unpaved or chert driveway leading to a church located on the east side of highway 38. This chert driveway is approximately 12 feet wide and is about 21 feet north of the intersection of highway 38 with the Silver Lake Road, which was also unpaved at the time of the accident. Just prior to the accident appellant was driving south on highway 38. She testified that she only saw appellee's automobile, which was driving north on highway 38, for a distance of 100 feet before it reached the point of impact and that she was frightened and excited and didn't recall whether her foot was on the gas pedal or brake.
The defendant testified that just prior to the accident he was traveling north on the east side of highway 38 and saw appellant's car several hundred feet away but when he was only about 70 or 80 feet from appellant's car without signal so far as he saw, she suddenly cut across the highway to the left and stopped immediately in front of his car, blocking the highway. The defendant testified that when he saw the plaintiff turn he immediately applied his brakes. The point of impact was approximately 3 feet and 6 inches east of the center line of the highway and the skid marks made by defendant's car leading up to the defendant's vehicle were wholly on the east side of the center line of the highway. The left front of the defendant's car collided with the right front of appellant's car. There is testimony tending to show that after the impact the defendant's car stopped approximately at the point of the impact traveling at that time not over 8 or 10 miles per hour while the plaintiff's car rolled slowly backwards down the hill for a distance of 15 feet.
The plaintiff testified that she was driving approximately 15 miles per hour before reaching the point where she wanted to make a left turn in order to turn into the driveway leading to the church. According to her she gave a signal before turning and looked in both directions but did not see anything. Further according to her she slowed down and started across the highway and her left wheel was about the middle line when she first saw the defendant's car. She was either almost stopped or was going mighty slow when the defendant came over the top of the hill and she first saw him. According to her the front of the defendant's car struck the front of her car on the right front and knocked it all the way across the road back in the driveway.
The plaintiff testified that the defendant was going about 70 miles per hour after he topped the little hill 100 feet from the point of impact. In the neighborhood along the highway where the impact took place there was a church, school, school annex and filling station as well as many dwelling houses immediately fronting on the highway. Bobby Montgomery, witness for the plaintiff, testified that the defendant's car was going at least 50 miles an hour. Highway 38 is a muchly traveled highway, but at the time of the accident the two cars here involved were the only cars on the highway at or near the place of the accident. It is undisputed that the visibility where a car could be seen from the direction from whence the defendant's car came to the point of the impact was approximately 700 feet. J. H. Hagood, a state highway partrolman, testified that he measured the skid marks behind Mr. Drennen's car at the time of the accident and they measured 63 feet. They were black marks on the highway. From where he found the mud and debris of the impact, it was 12 feet to where the plaintiff's car was located on the west side of the highway. From where the skid marks first started behind the defendant's car it was about 150 feet back to the top of the hill. When the plaintiff's car was hit, the hood flared up.
The defendant testified that he was going 40 to 45 miles per hour. He had been along the highway at the point of the accident from six to perhaps ten times before the accident.
Substantially all of the assignments of error are based upon ...
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