Westbrook v. Gibbs

Citation285 Ala. 223,231 So.2d 97
Decision Date22 January 1970
Docket Number1 Div. 425
PartiesHassie Mae WESTBROOK, as Admrx., etc. v. Homer GIBBS et al.
CourtSupreme Court of Alabama

Diamond & Lattof, Mobile, for appellant.

Hand, Arendall, Bedsole, Greaves & Johnston and Jerry A. McDowell, Foreman & Brown, Moore, Moore, Downing & Layden, Mobile, for appellees.

LIVINGSTON, Chief Justice.

This is an appeal from a verdict and judgment in favor of each of the defendants below, Homer Gibbs and Louisville and Nashville Railroad Company, a corporation, in the Circuit Court of Mobile County, Alabama.

Hassie Mae Westbrook, as administratrix of the estate of Elizabeth Moten Mickles, deceased, brought suit against Homer Gibbs and Louisville and Nashville Railroad Company, a corporation, for causing the death of her intestate. Mickles met her death as the result of an accident involving an automobile being operated at the time of the accident by Homer Gibbs and a train of the defendant railroad company. The accident occurred near Grand Bay, in Mobile County, Alabama.

Defendant Homer Gibbs will hereinafter be referred to as 'Gibbs,' and defendant Louisiville and Nashville Railroad Company, a corporation, as 'L. and N. Railroad.'

The following facts are undisputed: On December 5, 1964, Wilmer White, James Alexander and Homer Gibbs left the village of Plateau, Alabama, near Mobile, and drove to the home of James Alexander in Moss Point, Mississippi, a distance of some thirty to thirty-five miles. The three men made the trip in White's two-door Pontiac Bonneville automobile, with White driving from Plateau to Moss Point. Upon arriving in Moss Point, the men unloaded from the automobile certain items which they carried there for Alexander. While at Alexander's home in Moss Point, Elizabeth Moten Mickles and Etta Ree Robinson came by Alexander's home and asked Alexander, whom they knew, if they might ride back to Mobile. The three men, after discussing the request, consented. White, who had worked the preceding night without sleep, asked Gibbs if he would drive the automobile back to Mobile, to which Gibbs agreed. When they left Moss Point, Gibbs was driving and Mickles was sitting in the front seat of the automobile between Gibbs and Alexander. White, the owner of the automobile, was sitting on the back seat directly behind Gibbs, and Etta Ree Robinson was sitting on the back seat next to White. White fell asleep soon after they left Moss Point and continued to sleep up until the time of the accident. As they approached Grand Bay, they were driving in an easterly direction on Highway 90, which runs generally east and west. At the point at which the accident occurred, Highway 90 is parallel and in close proximity to the tracks of the L. and N. Railroad. Approximately one mile from Grand Bay, at what is known as Seager Road, Mickles requested that they make a rest stop. Gibbs turned off Highway 90 onto Seager Road, crossed the tracks of the defendant L. and N. Railroad, and continued for a distance of approximately fifty yards before stopping the automobile. Mickles and Alexander got out of the automobile to, and did, relieve themselves. They then got back into the automobile, occupying the same positions as they had occupied prior to the rest stop. Gibbs then turned the automobile around and, in crossing the tracks again, said automobile was struck by a locomotive of the L. and N. Railroad. Alexander and Mickles were killed.

The complaint contained two counts, each of which was directed against both of the defendants: one, a simple negligence count, and the other predicated on the willful or wanton misconduct of the defendants, Count One, and Count Two (as amended), are as follows:

'COUNT ONE

'Plaintiff, who sues as Administratrix of the Estate of Elizabeth Moten Mickles, deceased, claims of the Defendants FIFTY THOUSAND AND NO/100 ($50,000.00) DOLLARS as damages, for that heretofore, on, to-wit, the fifth day of December, 1964, the agent, servant or employee of the Defendant Louisville and Nashville Railroad Company, a corporation, while acting within the line and scope of his employment, was running or operating a locomotive engine or train upon or along Defendant's tracks at a point or place approximately one mile West of Grand Bay, Mobile County, Alabama, where Seager Road (also known as Alabama Highway 188) a public street or road in Mobile County, Alabama, crosses the railroad tracks of said Defendant, and your Plaintiff alleges that Defendant Homer Gibbs was operating an automobile upon Seager Road in a Southerly direction at a place or point where it crosses the railroad tracks of the Defendant Louisville and Nashville Railroad Company, and your Plaintiff alleges that the two Defendants so negligently operated the locomotive engine or train and the automobile that they, with great force and violence, collided, and as a proximate result and consequence of said negligence, the Plaintiff's intestate, who was then and there a passenger on the 'share the expense basis' of the automobile being operated by the Defendant Homer Gibbs, was thereby killed; the Plaintiff alleges that her said intestate, Elizabeth Moten Mickles, was killed as a proximate result of the negligence of the Defendants herein, hence this suit.'

'COUNT TWO

'Plaintiff, who sues as Administratrix of the Estate of Elizabeth Moten Mickles, deceased, claims of the Defendants FIFTY THOUSAND AND NO/100 ($50,000.00) DOLLARS as damages, for that heretofore, on, to-wit, the fifth day of December, 1964, the agent, servant or employee of the Defendant Louisville and Nashville Railroad Company, a corporation, while acting within the line and scope of his employment, was running or operating a locomotive engine or train upon or along Defendant's tracks at a point or place approximately one mile West of Grand Bay, Mobile County, Alabama, where Seager Road (also known as Alabama Highway 188), a public street or road in Mobile County, Alabama, crosses the railroad tracks of said Defendant, and your Plaintiff alleges that Defendant Homer Gibbs was operating an automobile upon Seager Road in a Southerly direction at the place or point where it crosses the railroad tracks of the Defendant Louisville and Nashville Railroad Company, and your Plaintiff alleges that the two Defendants so wantonly operated the locomotive engine or train and the automobile that they, with great force and violence, collided, and as a proximate result and consequence of said wantonness the Plaintiff's intestate, who was then and there a passenger of the automobile being operated by the Defendant Homer Gibbs, was thereby wantonly killed; the Plaintiff alleges that her said intestate, Elizabeth Moten Mickles, was killed as a proximate result of the wantonness of the Defendants herein, hence this suit.'

Included in the pleas filed by the defendants to the complaint, as amended, was the following, filed by defendant Gibbs:

'Comes now Homer Gibbs, one of the Defendants in the above styled cause, separately and severally, and for additional Answer to the Plaintiff's Complaint and to each Count thereof, separately and severally, sets down and assigns the following separate and several additional Plea, separately and severally:

'7. That the accident or mishap referred to in the Plaintiff's Complaint occurred in the State of Alabama; and that in the State of Alabama there was, at the time of the said accident or mishap, in full force and effect, what is known and described as a guest statute, as follows to-wit:

"The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said vehicle.'

'That at the time and place of said accident or mishap, the plaintiff was a guest passenger in the motor vehicle being driven by the Defendant, Homer Gibbs; that plaintiff would be subject to the terms and conditions of the said guest statute.'

Count Two of the complaint, as amended, did not allege that the plaintiff's intestate, Elizabeth Moten Mickles, was riding as a guest in the vehicle being operated by Gibbs at the time of the accident; instead, it was alleged in Count Two that plaintiff's intestate was riding in the vehicle as a passenger. On its face, the complaint does not show that Count Two, as amended, is based upon the Alabama guest statute, Tit. 36, § 95, Code 1940 (Recompiled in 1958). It was, therefore, incumbent upon defendant Gibbs to plead the guest statute. Penton v. Favors, 262 Ala. 262, 78 So.2d 278. This he did, as set out supra. No demurrer was interposed to said plea, nor is any assignment of error on this appeal directed toward said plea. However, we would be remiss in our duty were we not to attempt to clarify the use of the terms 'passenger' and 'guest,' as those terms are construed in this state. In Wagnon v. Patterson, 260 Ala. 297, 303, 70 So.2d 244, we quoted with approval from Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, 10 A.L.R.2d 1342, in which the terms 'passenger' and 'guest' are unmistakably defined, to wit:

'The general rule is that if the transportation of a rider confers a benefit only on the person to whom the ride is given, and no benefits other than such as are incidental to hospitality, good will or the like, on the person furnishing the transportation, the rider is a Guest; but if his carriage tends to promote the mutual interest of both himself and driver for their common benefit, thus creating a joint business relationship between the motorist and his rider, or where the rider accompanies the driver at the instance of the latter for the purpose of having the rider render a benefit or service to the driver on a trip which...

To continue reading

Request your trial
31 cases
  • Foster v. Alabama Power Co.
    • United States
    • Supreme Court of Alabama
    • February 20, 1981
    ...act or omission of such duty injury will likely or probably result. Britton v. Doehring, 286 Ala. 498, 242 So.2d 666; Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97; Tucker v. Cox, 282 Ala. 489, 213 So.2d 222; Culpepper & Stone Plumbing & Heating Co. v. Turner, 276 Ala. 359, 365, 162 So.2d ......
  • Ridgeway v. CSX Transp., Inc.
    • United States
    • Supreme Court of Alabama
    • July 31, 1998
    ...v. Birmingham Southern R. Co., 259 Ala. 364, 66 So.2d 903 [ (1953) ]." 273 Ala. at 389-90, 141 So.2d at 172; see also Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97 (1970). The undisputed evidence indicated that CSX had complied with § 37-2-80 by erecting the "crossbuck" and that it had pla......
  • Central Alabama Elec. Co-op. v. Tapley
    • United States
    • Supreme Court of Alabama
    • May 12, 1989
    ...each particular case. Brown v. Turner, 497 So.2d 1119 (Ala.1986); Trahan v. Cook, 288 Ala. 704, 265 So.2d 125 (1972); Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97 (1970). In Lynn Stickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142 (Ala.1987), the majority of this......
  • Tolbert v. Gulsby
    • United States
    • Supreme Court of Alabama
    • May 28, 1976
    ...act or omission of such duty injury will likely or probably result. Britton v. Doehring, 286 Ala. 498, 242 So.2d 666; Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97; Tucker v. Cox, 282 Ala. 489, 213 So.2d 222; Culpepper v. Stone Plumbing & Heating Co. v. Turner, 276 Ala. 359, 365, 162 So.2d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT