Utility Trailer Works v. Phillips

• Decision Date: 21 November 1946
• Docket Number: 3 Div. 454.
• Parties: UTILITY TRAILER WORKS v. PHILLIPS.
• Court: Alabama Supreme Court

29 So.2d 289

249 Ala. 61

UTILITY TRAILER WORKS v. PHILLIPS.

3 Div. 454.

Supreme Court of Alabama

November 21, 1946

Rehearing Denied March 13, 1947.

Rushton Stakely & Johnston, of Montgomery, for appellant.

Jack Crenshaw, of Montgomery, for appellee.

The following charge was given at plaintiff's request '2. I charge you that any negligence of Hayes, even if you are reasonably satisfied Hayes was negligent would not bar plaintiff's right to recover.'

LAWSON, Justice.

This is a suit by Eugene B. Phillips against Utility Trailer Works, a corporation, to recover damages for personal injuries sustained as a result of a collision of a motorcycle, on which Phillips was riding as a passenger, and a truck owned and operated by the defendant corporation.

Insofar as the pleadings are concerned, the case was submitted to the jury upon two counts of the complaint charging simple negligence and defendant's plea of the general issue in short by consent in the usual form.

There were verdict and judgment for plaintiff. Defendant filed motion for new trial, which was overruled, and has appealed to this court from the final judgment, and from the judgment of the trial court upon the motion for a new trial.

The collision occurred in the late afternoon of the 12th day of June, 1945, on Bell Street, in the City of Montgomery, at a point approximately 580 feet east of the intersection of Bell and Holt Streets. Bell Street runs approximately east and west and is the main thoroughfare between the City of Montgomery and Maxwell Field, an Army post situated a few miles west of the City of Montgomery. Bell Street is also a part of the Montgomery-Birmingham Highway. At the time of the collision the weather was clear, the pavement was dry and visibility was good.

Plaintiff was a soldier stationed at Maxwell Field. He was riding as a passenger on a motorcycle driven by another soldier, Francis X. Hayes. The motorcycle was constructed so as to accommodate two people, with separate footrests and handles for the passenger. There was only one seat, but it was built to carry two people and the plaintiff was occupying the rear portion of this seat, immediately behind the driver. The type of seat on the motorcycle was described as a 'buddy seat' and the manner in which these two soldiers were riding was referred to in the testimony as 'buddy fashion.' The motorcycle was owned by one Henry W. Waas, but was at the disposal of Hayes.

The plaintiff and Hayes were roommates and on this occasion Hayes was enroute to Montgomery to 'see some people' and Phillips, who was riding with him, was going to remain in the city. After leaving Maxwell Field the motorcycle proceeded east on Bell Street in the direction of the City of Montgomery. Just prior to reaching the intersection of Bell and Holt Streets, Hayes reduced the speed of the motorcycle and then continued across the intersection.

The evidence for the plaintiff and the defendant as to the movement and speed of the two vehicles just prior to collision is in conflict in some material respects.

There is evidence for the plaintiff which tends to show that immediately after crossing the above-mentioned street intersection, the driver of the motorcycle had a clear vision from that point to a point a block or a block and a half past the scene of the accident, and there was no traffic ahead on the motorcycle driver's right-hand side of the street (south side of Bell Street); that Hayes saw defendant's truck stopped by a ramp on the south side of the street; that after passing the intersection, the motorcycle travelled at a rate of speed between twenty-five and thirty-five miles an hour on the south side of the street; that when the motorcycle came within a distance variously estimated at from fifty feet to one-half a block, the truck driver drove the truck at an angle of approximately forty-five degrees from the south side of the street toward the north side across traffic moving east on the south side of the street; that the truck stopped in the street in such a position that its front bumper was in the middle of the street and the rear of the truck was toward the sidewalk on the south side; that the south side of the street (the motorcycle driver's right-hand side) was partially blocked; that the driver of the motorcycle applied his brakes and attempted to go in front of the truck on the north side of the street, but was prevented from doing so by two cars moving in a westerly direction on that side of the street; that the driver of the motorcycle then turned back to the right to go behind the truck; that the driver of the truck backed the truck and the motorcycle skidded into the left side of the truck.

The plaintiff testified he did not keep a lookout ahead as the motorcycle proceeded at a speed of between twenty-five and thirty-five miles an hour, as he was seated immediately behind the driver of the motorcycle, whose head obstructed his view; that he left the driving of the motorcycle entirely to Hayes, whom he knew to be a good and careful driver; that he made no protest of any kind relative to the manner in which Hayes was driving the motorcycle in that nothing had occurred to justify or warrant a protest; that he did not drive a motorcycle and was not aware of any danger until the motorcycle was approximately 100 feet from the truck, when the driver put on the brakes and plaintiff then saw the truck ahead.

The driver of the truck involved in the accident did not testify. However, another occupant was called on behalf of the defendant and his testimony may be summarized as follows: The truck was parked on the south side of Bell Street in front of a building referred to in the testimony as the Hedo-Vandigriff Building; that just before the collision the truck started across the street in a northwesterly direction at an angle of about forty-five degrees moving in low gear at a speed of approximately ten miles an hour; that the truck had only moved about thirty 'steps' when the collision occurred; that witness first saw the motorcycle when it was coming over the top of a hill approximately 800 feet away; that as the motorcycle approached, the truck driver 'straightened the truck up and stopped' approximately in the center of the street; that there was traffic behind the truck moving in a westerly direction on the north side of the street; that the motorcycle as it approached first turned to the north side of Bell Street and then back to the south side and then skidded about eighteen or twenty feet on its left side into the truck; that the truck driver did not put the truck in reverse, but that it was knocked back by the force of the collision with the motorcycle; that in his opinion the motorcycle was moving at a speed of approximately sixty miles an hour as it approached the truck.

Defendant insists that the trial court erred in refusing to grant the motion for a new trial on the ground that the great preponderance of the evidence established the fact that plaintiff, appellee, was guilty of contributory negligence.

It does not appear that plaintiff and Hayes, the driver of the motorcycle, were engaged in a joint enterprise. Phillips was a mere 'passenger' or guest and was not directing or controlling the operation of the motorcycle, and hence was not chargeable with any negligence of the driver. Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642; Central of Georgia R. Co. v. Jones, 195 Ala. 378, 70 So. 729; Crescent Motor Co. et al. v Stone, 211 Ala. 516, 101 So. 49; Pope v. Halpern, 193 Cal. 168, 223 P. 470.

A person riding in or on a motor vehicle driven by another, even though not chargeable with the driver's negligence, is not absolved from all personal care for his own safety, but is under the duty of exercising reasonable or ordinary care to avoid injury; that is, such care as an ordinarily prudent person would exercise under like circumstances. Moore v. Cruit, 238 Ala. 414, 191 So. 252; Proctor v. Coffey, 227 Ala. 318, 149 So. 838; Bradford v. Carson, 223 Ala. 594, 137 So. 426; McDermott v. Sibert, 218 Ala. 670, 119 So. 681; Birmingham Ry., Light & Power Co. v. Barranco, 203 Ala. 639, 84 So. 839.

We will not say that plaintiff was guilty of contributory negligence as a matter of law in such a way as to preclude his recovery, for the reason that he was riding as a passenger on a motorcycle built to accommodate two persons, at a speed of between twenty-five and thirty-five miles an hour, at the time and place the collision occurred. Zinn v. Updegraff, 113 Kan. 25, 213 P. 816. The case made by the facts differs materially from the case of Curley v. Mahan, 288 Mass. 369, 193 N.E. 34, relied upon by defendant.

The question as to whether the plaintiff exercised such care to avoid injury as an ordinarily prudent person would have exercised under like circumstances was for the jury, as was the question of proximate cause.

We are clearly persuaded no case is here presented for disturbance of the verdict on the motion for new trial as contrary to the preponderance of the proof.

Defendant...