Opinion
35998, 36009.
DECIDED FEBRUARY 17, 1956.
Damages. Before Judge Davis. Dade Superior Court. September 21, 1955.
Frank M. Gleason, for plaintiff in error.
Maddox J. Hale, McClure McClure, contra.
In the main bill of exceptions, the evidence did not authorize a finding that the defendant's wife was negligent in any manner in the operation of the automobile; therefore, the court did not err in awarding the non-suit. The cross-bill of exceptions is dismissed.
DECIDED FEBRUARY 17, 1956.
Ralph Geddie, by next friend, brought an action against Dan Hall for damages allegedly caused by the negligent operation of an automobile by the defendant's wife. The damages used for resulted from a collision occurring on the open highway between an automobile being driven by the defendant's wife and one being driven by one Burns.
At the close of the plaintiff's evidence the court awarded a nonsuit and the plaintiff excepts.
The defendant assigns error on certain judgments by cross-bill of exceptions.
The following is all the evidence concerning the events leading up to and including the collision between the two automobiles.
Ralph Geddie testified for the plaintiff: "My name is Ralph Geddie, and I am eleven years old. I go to school, and am in the sixth grade. As to how this accident happened, well, we were driving along and I saw the car come across the road, and Lois throwed up her hands, and that is all I remember. When she threw up her hands, she said `Oh, Lord.' I was seated in the back seat, and Lois and her baby and Butch and Diane Holland all were in the front seat. Spencer and Lamar and me were in the back seat, and we were coming from Lois' house at that time. After Lois threw up her hands and said `Oh, Lord,' it was about a second, about a second and a half, I guess, before the car ran into us. I didn't see any other cars there besides the car we were riding in and the other car that was coming up meeting us. After that I do not know what happened. I went to sleep then. I woke up just before they took me to the hospital, and I did not go to sleep again after I got to the hospital. I knew everything from there on. . . I was sitting in the middle in the back seat, and Spencer and Lamar were in the back seat with me. Spencer was on the left, and Lamar was on the right. I weigh ninety-two pounds. Mrs. Hall was driving, and her sister's name is Diane. Diane is about my age. The other one was Curtis, and he is thirteen years old, and the baby was in one of those little carriages that hooks onto the seat. The front seat was crowded, and the baby was sitting right next to her. I didn't notice as we came down the road from Wildwood that she was having any difficulty in driving. From my observation sitting right behind her, she had apparently had no difficulty, and she had driven all right up until we came to the scene of the accident. At the place where the accident happened, the first thing I saw at the time was a car come across the drive-way. When I first saw the car, it was coming across the drive-way, and it was coming directly towards the car that we were in, just making a bee-line across the highway. From the time I saw it until it hit us was about three seconds. I didn't notice what the other two in the front seat did. I just noticed Lois. I don't know what Spencer did, because I didn't see him. I didn't see Lamar either. I don't know whether Spencer Jenkins slid down behind the front seat in behind Mrs. Hall or not. Mrs. Hall was driving in her right lane of the highway. Mrs. Hall was a little nervous coming home. I noticed she would kindly shake her arms a little all the time like she was nervous. She had hold of the steering wheel, and the steering wheel was shaking too. I have never driven a car, and don't know whether the steering wheel shaking would cause any difference or not. All I know is the fact that we were riding along there in the right-hand lane, and she was driving all right until this car came over and across, and after that I remember her screaming `Oh, Lord,' and she throwed her hands up."
Lamar Hutchings testified for the plaintiff: "My name is Lamar Hutchings. I am nearly fourteen years old, and I am in school here in Trenton, and am in the seventh grade. . . Lois' hands were shaking as she was driving the automobile that day, and her seat was pushed back against our feet (the persons who were sitting in the back seat) and she was a short woman, and she could reach the brake pedal, but she could not push the brakes all the way in from the position in which she was seated. Her hands trembled as she held on. Mrs. Hall was not sick before she left the house that day, and she did not get sick driving the car. I didn't see this other car coming up the road, but I heard her say `Oh,' and that is all I know about it. I don't know where the other car came from or anything about it. I was seated in the back seat, and it was Mrs. Hall who I heard say `Oh'. I heard her say `Oh' about a second before we hit, and after that I was knocked out. . . I was sitting on the right-hand side in the back seat, and Lois and her little sister and Butch were in the front seat, and the baby was in this baby carriage. I noticed that she couldn't push the brakes all the way in when we were coming up behind a line of cars. As to whether that isn't just a little low to tell whether she had the brakes all the way in, I had my arms up on the seat, and from that position, I could observe whether or not the brakes were all the way in. That was up the road about three miles from this accident. I didn't say anything to her about it. After I saw that, I just sat back down in the seat of the car. I noticed her trembling when she saw that car coming. I did not see the car coming. I just saw her hands trembling. As to how I know it was when she saw the car coming if I didn't see the car, we were coming over the hill, and she was shaking too. She had done nothing to indicate that she was scared. I don't know whether that shaking of the arms was caused from the vibration of the car, or the steering wheel, or what. All I know about the facts about the accident is that she was driving along in her right lane of traffic, and she wasn't going too fast. She was driving about forty-five miles an hour. I noticed nothing unusual about her driving. She was traveling along all right, and the next thing I knew I heard her say `Oh', and then `bang' and I was out."
Spencer Jenkins testified for the plaintiff: ". . . I have been Scout Master here in Trenton for approximately a year and a half. On the morning of February 19, 1955, Mr. Hall took me and these two boys here up to his farm to set out some seedling pines. . . As to Mrs. Hall's physical condition at the time, as far as I know, she was well enough. . . When we got ready to come home, we told Mrs. Hall we were ready to leave. I told her that the boys were ready to go, that they wanted to go in, and we all went out to the car, and she got ready to go. Besides these two lads, Claude (Butch) Curtis was there. He had also ridden up with us that morning. After we got ready to come back to Trenton, Lois got under the wheel. She had the baby that was in one of these seat-carrying apparatus that you carry babies in, which hung on the front seat right next to her. I don't remember and couldn't say how far that was from the steering wheel, or whether it was against her shoulder or not. The baby, who was in this collapsible chair, was a little over a year old. Mrs. Hall's sister, Diane Holland, was next in the front seat. I am not too sure about Diane's age, but I would say she was around nine. Butch Curtis was also in the front seat, and he was about thirteen years old. I was sitting directly behind her in the back seat; and Ralph Geddie and Lamar Hutchings were both back there with me. I don't remember whether Ralph Geddie was next to me or on the other side. From the Hall place to the point where the collision occurred up here near New England is roughly about ten or eleven miles. Mrs. Hall was driving at a speed of about forty miles an hour. When we came to the place where the collision occurred, I saw an automobile coming north, a convertible, which I later learned was driven by a man by the name of Burns. When I first saw Mr. Burns come over the hill, I would say he was roughly about fifteen hundred or sixteen hundred feet from Mrs. Hall. There was nothing to obstruct the vision of the operator of the car in which I was riding and to have obscured her view of the oncoming car driven by Burns for fifteen hundred feet. When I first saw Burns when he came over the hill, he was coming at a high rate of speed. He was on his side and normally in his lane, but all at once he got two wheels off of the pavement and kept coming with two wheels off the pavement down towards us. I would say Burns was roughly five hundred and fifty to six hundred feet from the car in which I was riding at the time the two wheels of his car got off the pavement. The two wheels were off the pavement on the shoulder of the road. He was not bringing his car to a stop, but was still coming. As to how much of his car was over on the shoulder and off the highway, I couldn't say exactly, but his two wheels were off on the shoulder. He might have been weaving just a little bit, and the dust was flying up. In my opinion, Burns' speed while he was in that condition was seventy or seventy-five miles per hour, at least. Mr. Burns kept coming on like that, and then all at once he just, at an angle, came into us, and I could see then that he was going to hit us at the angle he was coming into us. I would say Burns was about 175 feet from our car at the time he cut across the road at an angle and started into us. There was no object on the road or anything up there at the scene of the collision at that time and at that moment to have obstructed my view or the view of Mrs. Hall or anyone else that Burns was coming directly into her car. After Burns started in the direction of Mrs. Hall's car, I heard her say, `Oh, my goodness', and either just before or when she just started to say, maybe, the `Oh' part, why I saw what was going to happen, so I went to the right and I went down, and that is when my hip was dislocated. It was hit, and I just went down to the right, because I saw what was going to happen. As to whether the right shoulder of the road at that particular point was clear and unobstructed, there are some spill-ways there. I wouldn't know whether there was one at that particular point or not. I would say there was room there on that shoulder and at that point when I saw this car coming at us for Mrs. Hall to get over on that part. I don't know whether the collision would have been avoided if she had steered over on the shoulder on the west side of the highway at that point or not. I don't know whether he would have come straight into us or not. He hit us on our side. I don't really know exactly where he hit us, because I was watching him come in, and I went down, and as far as the collision is concerned, I didn't hear or see the exact collision, because it knocked me out. I went down and then I was knocked unconscious, so I don't know exactly about where we were hit. There was nothing on the west shoulder of that highway that would have prevented driving our car on there as Burns drove at us. As to whether Burns would have gone by had Mrs. Hall driven over there, the way it looked to me, I guess he was just headed for that ditch there. He landed in the ditch north of the Hall car. He struck the front part of her car. When I came to and looked up, I was laying this side, or south, of Mrs. Hall's car, and the car was turned at an angle, the front end was facing kindly a southwest position, and then I looked past it over to my left, and saw the Burns car in the ditch. To my knowledge, Mrs. Hall never slowed down that car or applied the brakes. Mrs. Hall's speed was about forty miles an hour, and the other car's speed was 70 to 75 miles an hour. When it got to within a 175 feet of us, I would say, with him being on the shoulder like he was that he would probably have slowed down to around 65. Based on these facts, and seeing and knowing the respective speeds of the cars, in my opinion, I don't believe the two cars could have avoided each other after he got over to the center line, or after he came across there. At the angle he was coming, and the way he was going, I don't think the two cars could have avoided each other. As to whether the spill-ways that I testified about on the west side of the road would be some obstruction on the shoulder of the road, or would be a safe object to drive over, no, it wouldn't be safe. At the point where the car stopped there is a spill-way just a way back of that. She possibly would have had to come in contact with that spill-way if she had turned out there to get on the shoulder. There is just a slight curve in there and also a dip as you come over the hill coming south the way we were driving from the crest of the hill down to where that road turns off there. She was driving about 45 miles an hour, and to the best of my knowledge, she didn't slow her car down. She might have slowed the car down some and I didn't notice, but if she had slowed it down to, say, 5 or 10 miles an hour, I would have noticed it. The Burns car turned suddenly from the shoulder coming angling towards the car which we were driving. Up to that point, Mrs. Hall had been driving in a careful manner, and there was nothing unusual about her operation of the automobile. The Burns car coming at that angle struck the front end of her car. I did testify that even had she turned to the right onto the shoulder of the road the car would have hit her car, but possibly in another position. In answer to Mr. Hale, I stated that Mrs. Hall did not slow down, to the best of my knowledge. I first saw this car, with two wheels over on the east side of the highway on the shoulder some five or six hundred feet away. After it was over there and I saw that other car in that position, Mrs. Hall did not make any effort to stop her car. If Mrs. Hall had applied her brakes at that point, when that Burns car was over on the shoulder 500 to 600 feet away, the collision could have been avoided. There was nothing to indicate at that point that the Burns car was going to come over on our side of the road."
The plaintiff alleged that Mrs. Lois Hall was negligent in the following particulars: In driving in a business district on a heavily traveled highway at a rate of speed in excess of 35 miles per hour; in driving an automobile on the highway when she knew that she was wholly incapable of driving because of her lack of experience as a driver; in driving the automobile when she knew that she was a highly nervous person, and knew that she lost control of herself and her nerves at the slightest disturbance; in failing to drive her automobile off the highway and onto the shoulder on the west side and avoid striking the oncoming vehicle which she saw coming steadily toward her for a distance of 125 feet; in removing her hands from the steering wheel and in failing to steer the car, and in permitting the automobile to run wildly down the highway, without making any effort whatsoever to control the car; in failing to sound her horn; in failing to apply her brakes or stop said car; in driving at an excessive rate of speed while rounding a curve.
The evidence does not show that Mrs. Hall was guilty of any negligence in the operation of the automobile. There was no evidence that she was driving at any excessive speed under the circumstances; there was no evidence that she was incompetent to drive an automobile; there was no evidence that the collision could have been avoided by the blowing of a horn or by the application of brakes; the evidence would not have authorized a finding that she was negligent in failing to drive onto the shoulder of the road under the circumstances. As to Mrs. Hall's taking her hands from the steering wheel, the evidence showed that she did this not more than a second and a half before the collision and there was no evidence to authorize a finding that Mrs. Hall could have done anything to avoid the collision in the second and a half that she had her hands off the steering wheel.
The court did not err in awarding the nonsuit.
The cross-bill of exceptions is dismissed.
Judgment affirmed on the main bill; cross-bill dismissed. Quillian and Nichols, JJ., concur.