Whittaker v. Walker

• Decision Date: 28 May 1931
• Docket Number: 4 Div. 488.
• Parties: WHITTAKER v. WALKER ET AL.
• Court: Alabama Supreme Court

135 So. 185

223 Ala. 167

WHITTAKER v. WALKER ET AL.

4 Div. 488.

Supreme Court of Alabama

May 28, 1931

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action under Homicide Act by E. T. Whittaker, as administrator of the estate of Emma Rolland, deceased, against A. O. Walker and Otis Walker. From a judgment for defendants, plaintiff appeals.

Affirmed.

O. S Lewis, of Dothan, for appellant.

T. M Espy and Lee & Tompkins, all of Dothan, for appellees.

SAYRE J.

Plaintiff's intestate, riding in an automobile, lost her life in a collision with another automobile on the highway between Dothan and Ashford. That highway is not paved; it is surfaced with gravel or sand clay. There was evidence-the testimony of the husband of deceased who was driving the car in which she was riding, a Ford touring car-that defendant's car at the time of the collision was moving at the speed of fifty miles an hour. The court excluded testimony offered by plaintiff to the effect that defendant's automobile was moving at the rate of fifty miles an hour at a point three-quarters of a mile before it reached the place of collision. The courts are not agreed as to whether evidence of this peculiar character should be received in cases of this sort. This court in Louisville & N. v. Woods, 105 Ala. 561, 17 So. 41, 45, in which plaintiff, a brakeman on defendant's freight train, complained that, by reason of the negligent operation of the train, he had been thrown therefrom, suffering the injuries complained of-in that case this court held that "there was no error in receiving testimony as to the rate of speed of the train at Holmes' Gap, which was not more than a mile and a half from the place of the injury. The jury could very properly consider the rate of speed here, in determining the rate of speed at a place so near."

In Davies v. Barnes, 201 Ala. 120, 77 So. 612, 613 plaintiff was run against and injured by defendant's automobile at a point where a railroad crossed Twentieth street in the city of Birmingham. A witness was allowed to state the rate of speed at which the automobile was moving at a point a block and a half south of the crossing. Affirming the judgment for the plaintiff, this court said:

"We, of course, do not overlook the difference between a railroad train running on rails, and probably observing the obligations of a schedule time, and an automobile running on the highway at the will of its driver. There is a difference, but the difference is in the strength of the inference and its probative value, and not in the principle of relevancy and admissibility.

"With respect to the distance at which previous speed is admissible for this purpose, there must indeed be some limit; but, as in all similar cases, this will depend upon the facts of each case, and must be left to the sound discretion of the trial court."

In the one case the vehicle, the speed of which was in question, was a railroad train; in the other, it was an automobile on a city street. To the same effect was the opinion in a case in which the distance between the points of observation and contact was "several...