Opinion
6 Div. 461.
June 30, 1960.
Appeal from the Circuit Court, Jefferson County, Thomas E. Huey, Jr., J.
Chas. E. Sharp and Sadler, Sadler, Sullivan Herring, Birmingham, for appellant.
Where the evidence shows that a defendant has followed a vehicle at a speed of 40 miles per hour at a distance of 20 feet for at least a quarter of a mile and does not see a parked vehicle until he is 15 feet away and runs into the rear of said parked vehicle knocking the same 20 feet, a jury question as to wantonness is established. McLaney v. Turner, 267 Ala. 588, 104 So.2d 315; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Alabama Power Co. v. Buck, 250 Ala. 618, 355 So.2d 355; Smith v. Lawson, 264 Ala. 389, 88 So.2d 322. In considering whether or not a wanton case has been made, the Court should review the tendencies of the evidence most favorable to the plaintiff, regardless of any view the Court may have as to the weight of the evidence and must allow such reasonable inferences as the jury was free to draw, not inferences which the Court thinks the more probable. Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516; Duke v. Gaines, 224 Ala. 519, 140 So. 600. To give a charge to the jury that if they find from the evidence that the plaintiff's injuries resulted from an unavoidable accident they cannot find for the plaintiff, is misleading, confusing and prejudicial to the plaintiff. Mobile City Lines v. Alexander, 249 Ala. 107, 30 So.2d 4; Kelly v. Hanwick, 228 Ala. 336, 153 So. 269; Hemmings v. Planters Supply Co., 37 Ala. App. 171, 65 So.2d 538. A plaintiff may testify as to expenses he has incurred as a result of injuries sustained by a wrongful act. Opelika Coca-Cola Bottling Co. v. McEachern, 242 Ala. 628, 7 So.2d 570; Conner v. Hamlin, 33 Ala. App. 54, 29 So.2d 570; Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633, 53 A.L.R. 840. To impeach a witness by a prior inconsistent statement, the witness must first be confronted with the statement and given an opportunity to admit, deny or explain said prior inconsistent statement. 98 C.J.S. Witnesses § 604 p. 599; Vaughn v. State, 236 Ala. 442, 183 So. 428; Brown v. State, 32 Ala. App. 131, 22 So.2d 445.
London, Yancey, Clark Allen, Birmingham, for appellee.
The mere showing of a collision with the rear end of a stopped automobile does not constitute prima facie evidence of wanton conduct on the part of the driver of the following vehicle, and all of the controlling elements of wantonness must be present to make such an issue for the jury. Smith v. Roland, 243 Ala. 400, 10 So.2d 367; Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505; Simon v. Goodman, 244 Ala. 422, 13 So.2d 679; Crocker v. Lee, 261 Ala. 439, 74 So.2d 429; Rota v. Combs, 267 Ala. 50, 99 So.2d 692; Zemczonek v. McElroy, 264 Ala. 258, 86 So.2d 824; Kingry v. McCardle, 266 Ala. 533, 98 So.2d 44; Mi-Lady Cleaners v. McDaniel, 235 Ala. 469, 179 So. 908, 116 A.L.R. 639. It is neither error to give nor to refuse an unavoidable accident charge. Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516; Bahakel v. Great Southern Trucking Co., 249 Ala. 363, 31 So.2d 75; Connor v. Foregger, 242 Ala. 275, 7 So.2d 856; Socier v. Woodard, 264 Ala. 514, 88 So.2d 783. There is a presumption in favor of the correctness of the jury's verdict which is strengthened when the trial court refuses to grant a new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Mobile City Lines v. Hardy, 264 Ala. 247, 86 So.2d 393; Jeffrey Manufacturing Co. v. Hannah, 268 Ala. 262, 105 So.2d 672. It is harmless error for the court to temporarily refuse to allow a party to testify as to the amount spent on medical bills when it is not clear whether a doctor will be present to testify as to the reasonableness thereof, and this is particularly true when a verdict is rendered in favor of the defendant on the issues of liability and no damages at all are recovered by the plaintiff. State v. 2147 Pounds of Packing Stock Butter, 29 Ala. App. 607, 199 So. 739; McElroy, Law of Evidence in Ala., § 13; Supreme Court Rule 45.
Appellant, plaintiff below, sued appellee for $50,000 for bodily injuries received by him while driving his automobile on First Avenue North, at or near an intersection with Division Avenue in Birmingham.
Count 1 alleged simple negligence and Count 2 alleged wanton misconduct. Demurrer being overruled, appellee entered a plea in short by consent.
Upon conclusion of the testimony, the court gave the affirmative charge as to the wanton count. The case was submitted to the jury on Count 1 and verdict was for the defendant. Motion for a new trial was denied.
The main insistence is that the court erred in withdrawing the wanton count from the jury.
Plaintiff and defendant were traveling west on First Avenue North in the Roebuck section of Birmingham, about 2:00 o'clock on a Saturday afternoon. At that point, First Avenue is a four lane highway, the middle lanes being separated by a grass division. Plaintiff was in the right or north lane, defendant was in the left or south lane, some distance back east of plaintiff's car. Plaintiff switched from the north lane to the south lane in order to make a left turn into Division Avenue. Plaintiff testified that there were three automobiles in the south lane to his rear as he prepared to switch lanes. The lead car passed him on his left, the middle car passed him on his right, and when he had stopped in the left lane at the intersection, defendant's car hit plaintiff's car in the rear and knocked it some ten to twenty feet.
The defendant testified that he had seen plaintiff's car in the north lane some quarter of a mile back toward Gadsden, and the next time he saw it was when the car immediately in front of him swerved to the right and plaintiff's car was immediately in front of him. Defendant was following about a car's length behind the car which swerved to the right; he was going about forty miles per hour; he put on his brakes, one skid mark measuring sixty-three feet, the other thirty feet, and the front of his car hit the rear of plaintiff's car. The street was dry. Defendant, who lived in Gadsden, had traveled First Avenue North "quite a few times" to visit relatives in Birmingham. There was a thirty mile per hour speed limit sign somewhere in the vicinity but its precise location is not definite from the record. It was undisputed that appellee's car was in fair mechanical condition and that appellee did not see appellant switch lanes and did not know that appellant's car was in the left lane or had stopped until the car immediately in front swerved around appellant's car.
We have defined wantonness as follows in Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505, 506:
"Wantonness is the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury. Duke v. Gaines, 224 Ala. 519, 140 So. 600; First National Bank of Dothan v. Sanders, 227 Ala. 313, 149 So. 848."
A similar definition appears in Simon v. Goodman, 244 Ala. 422, 13 So.2d 679.
In our opinion, a case of simple negligence was made by the testimony, and this issue was properly submitted to the jury. It is also our opinion that the evidence did not support an inference of wanton conduct, that is, that appellee, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some duty which produced injury to appellant and to his vehicle. These essential elements of wantonness were left to conjecture. Zemczonek v. McElroy, 264 Ala. 258, 86 So.2d 824; Dean v. Adams, 249 Ala. 319, 30 So.2d 903; Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505; Smith v. Roland, 243 Ala. 400, 10 So.2d 367; Mi-Lady Cleaners v. McDaniel, 235 Ala. 469, 179 So. 908, 116 A.L.R. 639. See Kingry v. McCardle, 266 Ala. 533, 98 So.2d 44.
Assignment of error 8 charges that the court erred in charging the jury that they could find that the plaintiff was injured as a result of an unavoidable accident. We have held that neither the giving or refusal of "unavoidable accident" or "mere accident" charges constituted reversible error, but the better practice is to refuse them. Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516(19); Socier v. Woodard, 264 Ala. 514, 88 So.2d 783.
Assignment of error 12 charges error in the failure of the court to grant the motion for a new trial on the ground that the verdict was contrary to the great weight and preponderance of the evidence.
Verdicts are presumed to be correct and no ground of new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the weight of the evidence. It is recognized by this court that when the presiding judge refuses, as here, to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. After allowing all reasonable presumptions in favor of the correctness of the verdict, we cannot say that the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. We hold, therefore, that the trial court did not err in overruling those grounds of the motion for new trial taking the point that the verdict was contrary to the great weight of the evidence. Mobile City Lines v. Hardy, 264 Ala. 247, 86 So.2d 393; McGehee v. Frost, 268 Ala. 23, 104 So.2d 905.
Assignments 14 and 16 charge error in the refusal of the court to allow plaintiff to state the amount of his medical bill from one of his doctors, and the failure to allow plaintiff to state that a back brace cost $42.
Appellant offered to connect this testimony up by later recalling a doctor to the stand to show the reasonableness of the bills, and the court postponed the admission of this evidence until the doctor was recalled, but in fact, the doctor was not recalled.
Considerable latitude of discretion is accorded to the nisi prius court in the conduct and regulation of trials. We cannot hold that the trial court abused that discretion in temporarily sustaining objection to the proposed evidence, especially in view of the statement of appellant's counsel — "we will connect it up. We will get the doctor out here."
Moreover, this evidence goes merely to the extent of damage suffered by plaintiff. The judgment absolved the defendant from liability, so error, if any, cannot be made the predicate for a reversal of such ruling. Salvation Army v. Security Roofing Co., 255 Ala. 349, 51 So.2d 513, and cases therein cited.
The three remaining argued assignments charge error in the admission into evidence of certain letters written by Dr. Paul Shannon, one of appellant's physicians. Dr. Shannon had testified on the previous day and was not questioned about the letters. They were introduced by the defendant the following day. Appellant urges that the letters were introduced to impeach Dr. Shannon's testimony without a predicate having been laid therefor.
The material parts of the letters were that plaintiff had been a patient, had recovered, he was working some eighteen hours a day and the doctor had "permitted him to plan for athletics in the Fall of the year."
The question of the severity of plaintiff's injuries went to the question of damages, and since the defendant was absolved from liability, the error, if any, was harmless. Salvation Army v. Security Roofing Co., 255 Ala. 349, 51 So.2d 513.
No reversible error having been shown in the argued assignments of error, the judgment is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, STAKELY, GOODWYN, and COLEMAN, JJ., concur.