Opinion
3 Div. 110.
October 11, 1934. Rehearing Denied November 8, 1934.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
John S. Tilley, of Montgomery, for appellant.
The motion for a new trial should have been granted: The verdict was contrary to the great weight of the evidence; contributory negligence was plainly shown on the part of appellee who was shown to possess the intelligence of a child of 14 years. Montgomery Code of Ordinances 1928, § 696-c; McCaleb v. Reed, 225 Ala. 566, 144 So. 28; Reynolds v. Woodward Iron Co., 199 Ala. 236, 74 So. 360; Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471; Dudley v. Ala. Utilities Service Co., 225 Ala. 533, 144 So. 5; Watson v. Ingalls, 218 Ala. 540, 119 So. 667; Cedar Creek Store Co. v. Stedham, 187 Ala. 622, 65 So. 984. Charge 31 states a correct principle of law, which appellant was entitled to have given to the jury. Alabama G. S. R. Co. v. Smith, 191 Ala. 644, 68 So. 56; Woodward Iron Co. v. Finley, 189 Ala. 636, 66 So. 587. The complaint fails to aver or show sufficient causal connection between defendant's alleged breach of duty and plaintiff's injuries and damages. Alabama G. S. R. Co. v. Smith, supra; Harrison v. Formby, 225 Ala. 260, 142 So. 572; Woodward Iron Co. v. Finley, supra; Jones v. Keith, 223 Ala. 39, 134 So. 630. The willful or wanton conduct is averred as the mere conclusion of the pleader, without sufficient averment of facts to support it. The averment characterizes the act and not the injury. Authorities, supra. Plaintiff was not entitled to recover under count 2, and the jury should have been so charged at defendant's request. Birmingham R. E. Co. v. Bowers, 110 Ala. 328, 20 So. 345; Montgomery Code, supra; So. R. Co. v. Shelton, 136 Ala. 211, 34 So. 194; Highland Ave. B. R. Co. v. Sampson, 91 Ala. 560, 8 So. 780; So. R. Co. v. Wright, 207 Ala. 411, 92 So. 655; Bailey v. Southern R. Co., 196 Ala. 134, 72 So. 67. Charge 33 is a correct statement of law, applicable to an action for personal injury as well as to one under the Homicide Act. Karpeles v. City Ice Delivery Co., 198 Ala. 454, 73 So. 647; Byram Co. v. Bryan, 224 Ala. 468, 140 So. 768.
Hill, Hill, Whiting, Thomas Rives, of Montgomery, for appellee.
It was a question for the jury whether plaintiff possessed that discretion, intelligence, and sensitiveness to danger which the ordinary child possesses when 14 years of age. Cedar Creek Store Co. v. Stedham, 187 Ala. 622, 65 So. 984; Watson v. Ingalls, 218 Ala. 537, 119 So. 667; Jones v. Strickland, 201 Ala. 138, 77 So. 562. There was no way to cross this intersection directly; and, even had plaintiff been an adult, the question of contributory negligence vel non would have been for the jury. Ivy v. Marx, 205 Ala. 60, 87 So. 813, 17 A.L.R. 1173; Salter v. Carlisle, 206 Ala. 163, 90 So. 283; Landham v. Lloyd, 223 Ala. 489, 136 So. 815; McCaleb v. Reed, 225 Ala. 564, 144 So. 28. While stating a correct abstract proposition of law, charge 31 was unintelligible to a lay jury. The complaint was not subject to the demurrer. Alabama G. S. R. Co. v. Burgess, 114 Ala. 587, 22 So. 169; Barbour v. Shebor, 177 Ala. 304, 58 So. 276; Birmingham Elec. Co. v. Baker, 219 Ala. 324, 122 So. 316; Harrison v. Formby, 225 Ala. 260, 142 So. 572; Byram Co. v. Bryan, 224 Ala. 466, 140 So. 768; Jones v. Keith, 223 Ala. 39, 134 So. 630; Alabama Power Co. v. Gooch, 221 Ala. 325, 128 So. 793; St. Louis S. F. R. Co. v. Dennis, 212 Ala. 590, 103 So. 894; Yarbrough v. Carter, 179 Ala. 356, 60 So. 833; Neyman v. Ala. G. S. R. Co., 172 Ala. 606, 55 So. 509, Ann. Cas. 1913E, 232. The evidence required the submission of the wanton count to the jury. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Cargall v. Riley, 209 Ala. 183, 95 So. 821; Byram Co. v. Livingston, 225 Ala. 442, 143 So. 461; Hood Wheeler Furniture Co. v. Royal, 200 Ala. 607, 76 So. 965. Charge 33, refused to appellant, would improperly limit damages under the wanton count. Under such count, in this case, damages by way of punishment could be added to compensatory damages.
Count 1 of the complaint shows a duty owing by defendant to plaintiff, and alleges a negligent breach of that duty, from which plaintiff was injured as a proximate result.
It was not subject to the demurrer interposed to it. Dozier v. Woods, 190 Ala. 279, 67 So. 283; Maddox v. Jones 205 Ala. 598, 89 So. 38; Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556; Strickland v. Davis, 221 Ala. 247, 128 So. 233; Ruffin C. T. Co. v. Rich, 214 Ala. 633, 108 So. 596; Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 689, 91 So. 779.
Count 2 alleges a direct wanton or willful injury to plaintiff by express terms, and is not dependent upon the claim of a consequential injury resulting from a wanton or willful act not sufficiently related to the injury. The demurrer to it was overruled without error. Buffalo Rock Co. v. Davis, supra; Caruth v. Sparkman, 226 Ala. 594, 147 So. 884; Birmingham Electric Co. v. Mann, 226 Ala. 379, 147 So. 165; Byram Co. v. Bryan, 224 Ala. 466, 140 So. 768; Harrison v. Formby, 225 Ala. 260, 142 So. 572.
The accident occurred as plaintiff, a boy then past thirteen years, was crossing South Perry street, in the city of Montgomery, near the intersection of Jefferson Davis avenue. The father, mother, and brother, with plaintiff, had traversed Jefferson Davis avenue going west. As that street crosses Perry, there is an offset, so that west of Perry the intersection is approximately one hundred feet south of the intersection east of Perry. One crossing Perry on Jefferson Davis does not have distinctly marked in the street any definite course, nor was an ordinance shown fixing the manner of making the crossing. It was shown to be customary to make a diagonal crossing in a southwesterly direction from approximately the southeast corner on the east side to the northwest corner on the west side of Perry. That was shown to have been the course of travel pursued by the family of plaintiff on this occasion.
The evidence for plaintiff tended to show that before undertaking to cross they stopped at Perry, looked north and south, and saw no cars approaching, then began to cross, and did not again look for cars. In thus crossing their faces were turned southwest, and their backs at an angle to north. Toward the north there was a sharp upgrade, so that they could see only about the distance of a block. Without seeing or hearing the car, defendant's taxi came down Perry from the north behind them at a rapid rate in excess of the city speed limit, when plaintiff and family could be seen for a block, and without slackening speed or warning of any kind ran into them severely injuring plaintiff, his father and mother. The taxi was heavily loaded with six passengers in addition to the driver and several musical instruments. The street was welt lighted, and was one of the most habitually traveled streets in the city at that time of night, to wit, 8:30 — all of which was known to the taxi driver.
This evidence, if true, is clearly sufficient to justify a finding of negligence, primary or subsequent, and of a wanton injury to plaintiff. Dozier v. Woods, supra; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Allison Coal Transfer Co. v. Davis, 221 Ala. 334, 129 So. 9.
The evidence for defendant tended to show that the driver of defendant's taxi saw the Werfel family when he was between fifty and seventy-five feet from them crossing the street; that he put on the brakes of his car and slowed down; that they apparently stopped for him to pass; that he then released his brakes and his car began to increase in speed, when they began to walk fast or trot, going directly in the line of his approach; and that he sounded his horn, turned his car toward the curb, struck a car parked there, but could not then avoid the accident. The defendant also introduced evidence which tended to show that plaintiff possessed the intelligence and discretion of a boy fourteen years of age.
This situation presented a jury question. Their verdict was not contrary to the weight of the evidence, and, in our opinion, should not be vacated.
In respect to contributory negligence as a defense to the negligence count, there were several questions which properly submitted that issue to the jury. It was for them to find whether plaintiff had the Intelligence of a boy fourteen years of age. Southern Exp. Co. v. Roseman, 206 Ala. 681, 91 So. 612; Watson v. Ingalls, 218 Ala. 537, 119 So. 667. Also whether he observed the car approaching when he was in the street, and started across in front of it. Van Sandt v. Brewer, 209 Ala. 131, 95 So. 463; Dozier v. Woods, supra. Also whether his making a diagonal crossing at a place of that sort and at that time was negligence which contributed to his injury.
Assuming that the making of such a crossing is prohibited by law or ordinance, the question of whether it proximately contributed to his injury is for the jury. Ivy v. Marx, 205 Ala. 60, 87 So. 813, 17 A.L.R. 1173; Salter v. Carlisle, 206 Ala. 163, 90 So. 283; Cooper v. Auman, 219 Ala. 336, 122 So. 351; Cooper v. Agee, 222 Ala. 334, 132 So. 173; McCaleb v. Reed, 225 Ala. 564, 144 So. 28; City of Birmingham v. Blood, 228 Ala. 218, 153 So. 430. But it is not shown to be violative of a city ordinance, and no state law so provides.
Charge 31 is confusing and misleading. None of our cases justify a charge in that language, though the principle is sometimes so stated. But it is not a clear statement. Woodward Iron Co. v. Finley, 189 Ala. 634, 66 So. 587.
Charge 33 is substantially the same as charge No. 8 in Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642, and which was there approved. But it is not here applicable. It states that the damages under the count in question are solely by way of punishment. The suit was under the homicide statute, and the damages are solely punitive. But the damages for personal injuries under a wanton count, such as here involved, include those which are compensatory as well as punitive.
We have considered all the assignments, and in our opinion they do not show reversible error, except alone in respect to the amount of damages awarded.
We have reached the conclusion that the award is so excessive that it should not be permitted to stand, and that $6,000 should be and is fixed as the maximum which we can affirm. The judgment is affirmed on the condition that appellee shall file in this court a remittitur of the excess, to be done within thirty days. If the remittitur is not so filed, the judgment will stand reversed and the cause remanded.
Affirmed conditionally.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.