Watson v. Ingalls

• Decision Date: 17 January 1929
• Docket Number: 879,3 Div. 872
• Citation: 218 Ala. 537,119 So. 667
• Parties: WATSON v. INGALLS (two cases.
• Court: Alabama Supreme Court

119 So. 667

218 Ala. 537

WATSON v. INGALLS (two cases.

3 Div. 872, 879

Supreme Court of Alabama

January 17, 1929

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Suits for personal injuries by Charles Ingalls, Jr., a minor, suing by his next friend, Charles Ingalls, and by Charles Ingalls against A.C. Watson, Jr. From judgments for plaintiff defendant appeals. Affirmed.

Rushton Crenshaw & Rushton, of Montgomery, for appellant.

Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

GARDNER J.

Charles Ingalls, Jr., was struck down by a car operated by A.C. Watson, Jr., and brought suit to recover damages for the injuries sustained. From a judgment for the plaintiff, defendant appeals. Charles Ingalls, the father of the boy so injured, incurred considerable hospital and medical expense, and sued separately for the damages he sustained as a result of the accident. The father also recovered a judgment, and defendant appeals. The two cases are here submitted by agreement of counsel as one appeal, controlled by a single bill of exceptions, and to be determined as if the appeals had been separately taken.

As to both cases, defendant insists that no actionable negligence on his part has been shown. Omitting nonessential details, the case may be embraced within a narrow compass of discussion. For convenience the boy will be referred to as the plaintiff.

These cases were tried before the court without a jury upon the oral testimony of the witnesses. Under these circumstances, it is well established rule that, where there are disputed issues of fact or conflicting inferences to be drawn therefrom, the conclusion of the trial judge thereon will not be here disturbed, unless found to be plainly erroneous or manifestly wrong. Halle v. Brooks, 209 Ala. 486, 96 So. 341; Hackett v. Cash, 196 Ala. 403, 72 So. 52; Bookmiller v. Jones, 216 Ala. 298, 113 So. 32.

We will briefly state the tendencies of the evidence, some of which were in dispute. The accident occurred on Park avenue, Cloverdale, in the evening of December 8th, after 6 o'clock, and after it was dark. The street was paved, narrow, and much traveled, particularly at this hour, and with all of which it may be inferred defendant was well acquainted. One witness, as to the travel, states that at this hour it was an average "at least a car every minute." The avenue is not straight, but curved; one witness stating that from the point of the accident to the point on Ridge avenue where plaintiff entered Park avenue "is a sharp curve." Another witness testified it was "curved enough to throw the lights out in front so you can't see where you are going; throw the lights in front rather than down the street." Defendant, entering Park avenue, was traveling east and on a decline. There are no sidewalks, and this avenue is used alike from curb to curb by pedestrians as well as vehicles. Plaintiff, with his companions, had been playing hockey on skates in the street. Defendant, as he entered Park avenue, saw these boys playing in the street, and testifies he blew his horn, but each of the boys state they heard no horn blown. Defendant further testifies, the moment he saw them, he "slowed down" and continued down the street, passing two of the boys on his left; that plaintiff was further down to the right, standing on the curb, and having passed the two boys he increased his speed gradually for a distance of 25 to 35 feet, and when within 10 feet of plaintiff he discovered he was going to move, and he put on his brakes and the emergency. Plaintiff, going straight across in front of the car, was struck by the left fender. Defendant did not blow his horn or give other signal upon seeing plaintiff standing on his skates to the right in the street at the curb, but, if the horn was blown, it was at a distance from plaintiff of 150 feet. He did not slacken his speed, as he did for the other boys, but, on the contrary, had "increased the speed slightly," to use his language. Defendant further testifies his speed was from 20 to 25 miles per hour; not over 25. Plaintiff's father testifies defendant told him he was going 25 miles an hour, "and he may have been going 30, but he didn't think he was going 30 miles an hour; *** that he was going full tilt when he struck Charles." Defendant denies this conversation. Defendant insists he was on the right side of the street, but there was evidence tending to show that his car had moved to the left side, and was on that side of the avenue when plaintiff was struck. Plaintiff saw no lights from the car and heard no horn. He had started across from the south curb to the north curb of the street, and the testimony tends to show that he had gotten two-thirds of the distance when struck--"one or two steps to get across."

"What is the exercise of reasonable care by an operator of a motor vehicle on public highways depends upon the circumstances of the particular case. ***" The terms "ordinary care" and "reasonable prudence," as applied to the conduct and the affairs of men, are declared to have only a relative significance, depending upon the special circumstances and surroundings of the particular case, and to defy arbitrary definition. White Swan Laun. Co. v. Wehrhan, 202 Ala. 87, 79 So. 479. "A child of tender years has capacity to exercise only such care and self-restraint as belongs to childhood. Reasonable men are presumed to know this, and must govern themselves accordingly." Jones v. Strickland, 201 Ala. 138, 77 So. 562.

At the point of the accident is the sharpest curve of the avenue. There was evidence tending to show that on this...