Zemczonek v. McElroy
| Decision Date | 12 April 1956 |
| Docket Number | 1 Div. 652 |
| Citation | 264 Ala. 258,86 So.2d 824 |
| Parties | Ben A. ZEMCZONEK v. Charles R. McELROY et al. |
| Court | Alabama Supreme Court |
Johnston, McCall & Johnston, Mobile, for appellant.
McCorvey, Turner, Rogers, Johnstone & Adams, Mobile, for appellees.
The following charges were given for defendants:
'13. The Court charges the jury that before the plaintiff can recover in this cause he must prove to the reasonable satisfaction of each and every juror each and every material allegation of one of the counts of his complaint.
'19. The Court charges the jury that if you believe from the evidence plaintiff's intestate was guilty of negligence which contributed even in the slightest degree to his injuries and death, you cannot return a verdict for the plaintiff.
'20. The Court charges the jury that if you believe the plaintiff's intestate was not being transported with pay therefor in the motor vehicle belonging to Charles R. McElroy, and that plaintiff's intestate was guilty of negligence which contributed, even in the slightest degree, to his injuries and death, you cannot return a verdict for the plaintiff against the defendant Charles R. McElroy under Count One of the complaint.
'21. The Court charges the jury that if you believe from the evidence that the Baggett Transportation Company, Inc. truck was being driven in a careful and prudent manner at the time and place alleged in the complaint, and that the automobile involved in the collision with said truck suddenly came over on the truck's half of the highway and ran into it, you cannot find for the plaintiff against the defendant Baggett Transportation Company, Inc.'
This suit was brought in the circuit court of Mobile County by Ben A. Zemczonek against Charles R. McElroy and Baggett Transportation Company, Inc., a corporation. The plaintiff sued under the homicide statute, § 119, Title 7, Code 1940, as father of Leonard V. Zemczonek, a minor, who lost his life as a result of a collision between Baggett's truck and an automobile owned by McElroy, in which young Zemczonek was riding.
To the first count, which charges simple negligence, each defendant separately pleaded the general issue and contributory negligence and to the second count, which charges wanton conduct, each defendant pleaded the general issue.
Affirmative instructions as to each count of the complaint were requested separately by the defendants at the conclusion of the evidence. All such charges were denied by the trial court except that requested by the defendant Baggett Transportation Company as to the wanton count, which charge was given.
There was jury verdict in favor of both defendants. Judgment was in accord with the verdict. Plaintiff's motion for new trial having been overruled, he has appealed to this court.
The collision occurred at about 3:30 A.M. on the morning of April 6, 1952, on U. S. Highway 43 in Mobile County at a point where the road was straight and level, but visibility was affected by darkness and by a heavy rainfall. The vehicles involved were meeting each other. The Baggett truck was travelling in a northerly direction and the McElroy automobile was going south.
McElroy, Leonard V. Zemczonek and Peter Zelvis, Jr., enlisted men in the United States Navy, were riding in the McElroy automobile. As shown above, Leonard Zemczonek was killed as a result of the collision, McElroy was injured to such an extent that he remained unconscious for about thirteen days, and Zelvis suffered a broken leg and other injuries. King J. Pierson, the driver and only occupant of the Baggett truck, was apparently uninjured.
McElroy, Zemczonek and Zelvis were returning to their station at Barin Field, Foley, Alabama, from a visit to their homes in Ohio. Zelvis testified that before leaving for Ohio he and Zemczonek agreed that each of them would pay McElroy one-third of the expenses incurred in making the trip. On direct examination McElroy made the following statement in regard to the expenses of the trip: 'My understanding was we would just split it three ways, being there were three of us.' On cross-examination he indicated there was no agreement that he would be reimbursed by Zelvis and Zemczonek but that he merely assumed such to be the case.
The McElroy automobile left the vicinity of Cleveland, Ohio, around five o'clock on the morning of April 5, 1952. It was driven continuously up to the time of the collision except for short stops for fuel and food. There is sharp conflict in the evidence as to who was driving the McElroy car at the time of the collision. Zelvis testified positively that McElroy was driving at that time, but stated that he and Zemczonek had done some driving on the return trip. Two naval officers testified that McElroy had stated to them sometime subsequent to the accident that he was the driver. McElroy testified that Zelvis did not drive the car at all on the return trip but that he and Zemczonek alternated in doing the driving and stated that at the time of the collision his automobile was being driven by Zemczonek.
Highway Patrolman Staggers, who reached the scene a few minutes after the collision, testified that he found the Baggett truck on the west side of the highway approximately 135 feet from the point where he determined from physical evidence that the impact occurred, which point he stated was in the eastern lane of traffic, that is, the lane in which the Baggett truck was supposed to move. He found the automobile about twenty-seven feet from the point of impact on the western side of the highway.
Zelvis testified that he was riding in the back seat of the McElroy automobile at the time of the collision; that he had been asleep but had awakened just prior to the impact and saw 'headlights coming towards us' but he would not say on which side of the road the collision occurred. Zelvis, as shown above, also testified that McElroy was driving the car at the time of the collision.
McElroy testified that he was asleep on the front seat of his automobile next to the driver Zemczonek at the time the two vehicles collided and that he had no knowledge of how the accident occurred.
Pierson, Baggett's driver, testified that the truck was in good mechanical repair in all respects prior to the accident; that because of the bad weather conditions and traffic he was driving the truck in a 'gear' which would not permit it to travel at a speed in excess of forty miles an hour and that the truck was moving in the eastern traffic lane as it approached the scene of the accident at a speed which he estimated at between thirty and thirty-five miles an hour, with the headlights dimmed; that he saw the headlights of the McElroy automobile for a distance equal to two or three city blocks and that the automobile was moving southwardly in the western lane of travel at a speed of between fifty and sixty miles an hour; that just prior to the collision the automobile turned sharply to its left so that it was headed in an easterly direction moving across the highway; that when he saw the automobile make the turn he applied the brakes to the truck and pulled it to the right to the extent that the right front wheels of the truck were off the eastern edge of the highway at the time of the impact; that the left side of the front part of the truck hit the right side of the automobile in front near the door handle; that as a result of the impact the automobile was knocked or pushed off the western side of the highway; that as a result of the collision the left fender of the truck was pushed down between the truck frame and the wheel to such an extent that the truck could not be steered and the air line to the left front wheel was broken, which resulted in the vehicle being without any brakes; that because of such damage the truck did not come to rest until it had travelled some 135 feet to a point on the western side of the highway.
R. C. Thompson testified in substance that shortly prior to the collision he was riding in his automobile in a southerly direction a few hundred yards behind the McElroy car, which was moving at a speed of around fifty miles an...
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