Opinion
SC 1350.
November 20, 1975.
Appeal from the Circuit Court, Calhoun County, Robert M. Parker, J.
James S. Hubbard, and Charles L. Parks, Anniston, for appellant.
Under circumstances of wrongful death action, testimony as to objects found at the scene about six hours after automobile highway accident was admissible to show point at which child was struck, but defendants would be entitled on cross-examination to show all facts surrounding witnesses observations, including lapse of time, fact that many people gathered around scene of accident, and fact that there was much travel over highway, all to affect credibility of their testimony and weight which jury would give to it. Holley v. Josey, 263 Ala. 349, 82 So.2d 328 (1955). Testimony of an investigating officer as to the position of the vehicles when he arrived at the scene of the accident was admissible to show point at which accident occurred, even though it was not shown that the vehicles were in the same position when the witness arrived at the scene of the accident as they were immediately after the collision. Malone v. Hanna, 275 Ala. 534, 156 So.2d 626 (1963); Holley v. Josey, supra. Occurrence witnesses are no more essential to the establishment of wantonness than in the proof of actionable negligence. Griffin Lumber Company v. Harper, 247 Ala. 616, 25 So.2d 505. Actionable negligence could be established by circumstantial evidence in action against driver of automobiles involved in head-on collision for death of occupant of one of automobiles and testimony of eyewitness was not necessary. Code 1940, Title 7, § 123; Harbin v. Moore, 234 Ala. 266, 175 So. 264. In ruling on a motion for a directed verdict, the Court must accept the truth of the evidence of the party against whom the motion is made and construe it most favorably to him; it cannot base its judgment on the evidence of the moving party, or draw inference favorable to him. Such a motion cannot be granted for the defendant in an automobile accident case, if there is any substantial evidence of negligence on the part of the defendant which has a causal connection with the accident, unless it is proved that the plaintiff's own lack of due care contributed to his injury. Am.Jur., "Automobiles", § 667, Page 873; Am.Jur., "Automobiles and Highway Traffic", § 1024, Page 901. Alabama is one of the few states that still adheres to the scintilla rule. Where evidence authorized inference that defendant's vehicle, in taking a highway curve to the left immediately before collision, was hugging the inside of the curve in violation of rules of road, question of defendant's negligence was for jury. Code 1940, Title 36, § 11 and § 28; Smith v. Tripp, 246 Ala. 421, 20 So.2d 870 (1945).
J. M. Sides, Anniston, for appellees.
If a party, in an effort to show negligence, attempts to introduce evidence as to conditions before or after the time of the accident, it must be first made to appear that the conditions were substantially the same on the two occasions. Malone v. Hanna, 275 Ala. 534, 156 So.2d 626 (1963); Holley v. Josey, 263 Ala. 349, 82 So.2d 328 (1955). On appeal all presumptions are in favor of the lower court's findings. Johnson v. Fishbein, 289 Ala. 328, 267 So.2d 405 (1972); Mobile City Lines v. Alexander, 249 Ala. 107, 30 So.2d 4 (1947); Davis v. Harrell, 209 Ala. 528, 96 So. 616 (1923); Shotts v. Scott, 192 Ala. 173, 68 So. 325 (1915). The Scintilla Doctrine prevails in this State, but such doctrine does not conflict with the well-known rule that a conclusion as to liability which rests upon speculation pure and simple is not proper basis for a verdict. Brooks v. Cox, 285 Ala. 267, 231 So.2d 302 (1970); Rota v. Combs, 267 Ala. 50, 99 So.2d 692 (1958).
This is an appeal from a directed verdict in favor of Anniston Lincoln Mercury, Inc., and its agent, Clarence Alfred Roberts, Jr., in a wrongful death action brought against them by Grace Leeth, as Administratrix of the estate of O. J. Leeth.
There are two issues for review: First, does evidence that the defendants' automobile came to a stop one to two feet across the center line following a head-on collision on a two-lane road make out a jury question on the issue of negligence? Second, must testimony concerning the position of vehicles after a collision be corroborated by proof that the vehicles had not been moved between the time of the accident and the time of the observation by a witness in order to be admissible?
We answer both questions in favor of the appellant; therefore, we reverse and remand for a new trial.
Because this case must be retried on remand, we consider it unwise to discuss the evidence extensively. Suffice it to say that the left front end of the car driven by plaintiff's intestate collided with the left front end of the car driven by Roberts in a curve on Highway 9 near Lineville, Alabama, on January 25, 1973. Plaintiff's intestate died instantly as a result of the collision. Appellant brought this wrongful death action urging the theory that Roberts was hugging the inside of the curve in violation of the rules of the road.
On direct examination, the plaintiff called Roberts who testified that he saw the Leeth car coming toward him and he began to pull his car to the right when the collision occurred. He also testified that immediately after the head-on collision the front end of his car came to rest one or two feet across the center line of the highway, i. e., to his left of the center line. He then drove his car across the road and parked his car off the paved surface onto the shoulder of the highway.
At the close of the plaintiff's case, the trial Judge granted the defendant's motion for a directed verdict.
The propriety of this ruling is embraced in the issue whether Roberts' testimony that he was pulling right immediately before the collision and that his car came to rest across the center line after the collision makes out a jury question on negligence. The Alabama case of Smith v. Tripp, 246 Ala. 421, 20 So.2d 870 (1945), is directly on point. In that case, the only competent evidence on the issue of liability showed "that the driver of the defendants' truck pulled to the right immediately before the collision" and that his truck came to rest with the back corner of the trailer slightly over the center line. The Court held that this testimony was enough to make out a jury question (and, indeed, to sustain a jury verdict) on whether the defendants' truck was hugging the inside of the curve immediately before the collision. We hold that Tripp is authority for this situation; therefore, it was error to grant a directed verdict for the defendant.
Because the evidentiary question will likely arise again upon retrial of this cause, we will now treat that issue.
Plaintiff called Wayne Watts as a witness. Watts had followed the police to the accident scene. The plaintiff asked Watts where the vehicles were located at the scene of the accident. The trial Judge excluded this testimony because the plaintiff could not prove that the automobiles had not been moved between the time of the collision and the time Watts arrived on the scene. Both parties rely upon the cases of Holley v. Josey, 263 Ala. 349, 82 So.2d 328 (1955), and Malone v. Hanna, 275 Ala. 534, 156 So.2d 626 (1963), to support their positions on this appeal.
The Josey case, which was quoted at length and approved in the Hanna case, affirmed the trial Court's admission of evidence concerning the location of objects found at the scene of an automobile accident even though the proponents could not prove that the objects were in the same place when the witnesses saw them as they were at the time of the accident. The Josey court cited and distinguished three Alabama cases: S. H. Kress Co. v. Barratt, 226 Ala. 455, 147 So. 386 (1933); Bradley v. Deaton, 208 Ala. 582, 94 So. 767 (1922); Southern Railway Co. v. Lefan, 195 Ala. 295, 70 So. 249 (1915). See also Birmingham Union Railway Co. v. Alexander, 93 Ala. 133, 9 So. 525 (1890).
The Josey court stated that the cited cases held "in substance, that if a party, in an effort to show negligence, attempts to introduce evidence as to conditions before or after the time of the accident, it must be first made to appear that the conditions were substantially the same on the two occasions"; but it held that "the rule as expressed by these cases is limited to where it is an attempt to show negligence".
The appellees argue that this language justifies the trial Judge's exclusion of Watts' testimony because it was offered in an effort to prove the plaintiff's allegation of negligence. This is not a proper interpretation of Josey.
To understand the rule, it is necessary to compare the three cases Josey distinguished with the holding of Josey and Hanna. The cases cited in Josey involved situations in which the negligence sought to be proved was a defective condition in the defendant's property (for example, an improperly secured awning or a burnt out trailer light). In such cases, the ultimate issue of liability is whether the property was defective at the time of the accident; that is to say, similarity of circumstances is a necessary predicate when the existence of an object or condition at a given time is in issue or is the gravamen of the action or defense. Therefore, any testimony concerning the condition of the property either before or after the accident is highly persuasive and should be corroborated by proof that the condition had not changed during the interval to avoid misleading the jury.
For a good discussion of "Prior or Subsequent Existence," see II Wigmore on Evidence, § 437, p. 413 (1940).
This is not to be understood as changing or otherwise affecting those cases which recognize the exceptions to this general rule. See, for example, Norwood Clinic v. Spann, 240 Ala. 427, 199 So. 840 (1941), and Gulf, M. N. R. Co. v. Havard, 217 Ala. 639, 117 So. 223 (1928).
Unlike those cases, Josey, Hanna, and the instant case involved testimony concerning the position of objects or vehicles at the scene of an automobile accident. Here, this testimony was obviously not offered in an effort to prove negligence. Indeed, the location of the defendant's car immediately after impact rather than its location as observed by Webb is more favorable to the plaintiff's theory of liability.
Josey did not intend to exclude all testimony about the scene of an accident which could not be accompanied by evidence accounting for the interval between the accident and the witness's observation. In fact, both Josey and Hanna affirmed the admission of such testimony without proof that the objects or vehicles had not been moved. In cases where the testimony does not go directly to the ultimate issue of liability, but only constitutes one feature of a composite of the witness's observations, the Josey court concluded that the right of cross examination — to show all the surrounding facts and circumstances — would amply protect the defendant. The credibility and weight of the testimony is left to the jury. We hold, therefore, that the exclusion of Watt's testimony was error.
We conclude on a note of caution. While the limited purpose of the question in the instant case was readily apparent, there are often situations where it is not clear from counsel's question whether the elicited proof of subsequent conditions at the accident site goes to the ultimate issue of liability. An example can be seen in the case where proof is offered of repair of premises after an accident. Evidence of subsequent repairs may be admitted for the limited purpose of showing the condition of the premises at the time of the accident, but such evidence is not admissible as an admission of negligence by the defendant. Whenever such evidence is offered, in testing its propriety it is entirely proper for the trial judge to require of counsel to show what issue his proffered proof addresses. Whenever such evidence is admitted, the party opposing the evidence has a right to have the trial judge instruct the jury that the evidence is not admitted to show negligence but for the limited purpose of allowing the party offering the evidence to show the condition of the premises (or other limited purpose) at the time of the accident. City of Montgomery v. Quinn, 246 Ala. 154, 19 So.2d 529 (1944).
Reversed and remanded.
HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.