Appellee, a minor, while driving a motor-bike, and appellant, while driving an automobile, were involved in a collision between the two vehicles at a street intersection in Greenville, Alabama, culminating in a suit for damages by appellee, suing by his next friend, and father, with judgment in favor of plaintiff for $10,000.00 on a count alleging negligence. This appeal is to review the trial proceedings, including the motion for a new trial, which the court denied.
Plaintiff, with a white companion on the rear seat of his bike, was traveling east on Palmer Street, down a slight grade, and defendant north on Oglesby Street, when the two vehicles collided slightly south of the middle of the intersection.
Plaintiff's evidence tended to show that before he reached the intersection, he threw his motorbike into second gear, proceeding down grade at the rate of about ten miles per hour while passing a group of negro adults and children congregated on the street; that, just before he reached the intersection where the collision occurred, he threw the bike into high gear and was not proceeding more than 25 miles per hour at the time of the impact. Plaintiff's passenger essentially corroborated plaintiff.
Plaintiff further testified that he did not see defendant's automobile until it was in the intersection right in front of him just before the impact. He further testified that he swerved his motorbike slightly to the left, the front wheel hitting the automobile on the left side about the hinges of the front door.
It was undisputed that the entrances to Palmer Street from Oglesby Street were controlled by lawful "stop" signs, placed there pursuant to § 21, Title 36, Code of Alabama, 1940, and that pursuant to said section, Palmer Street, upon which plaintiff was traveling, was a main traveled or through highway.
The medical evidence for plaintiff established without dispute that appellee sustained a fracture of the right femur, that is, the bone (and only one) from the right hip to the knee; also he had several small lacerations or cuts. He also had a laceration six inches in length on his right elbow, and another through the subcutaneous tissue muscle of the left knee, and a contusion of the left ankle.
The medical witness, a competent physician and surgeon, testified that he "operated on the leg * * * opened it on the side and put the ends of the bone together, made an incision up at the top of it and put a pin in it to hold it." This pin went the length of the bone. The patient was hospitalized from May 24 to June 14. The laceration of the knee went through the skin down to the tendon.
It further appears from the evidence that the plaintiff, after release from the hospital, used crutches until shortly after August 3. On January 8, the pin was removed from the bone.
The plaintiff testified as to the pain and suffering and the physical impediments he endured. Delineation of this testimony we deem unnecessary. All the injuries were of temporary duration. As a normal rule, the physician testified, it would take about two years for the plaintiff to get completely over the bone fracture.
The evidence of defendant tended to show that he brought his automobile to a complete stop in obedience to the sign on Oglesby Street, looked both east and west for approaching motorists, and observing none, he proceeded to enter the intersection. When he was about the middle of the intersection, plaintiff drove his motorbike into the side of the automobile which defendant was driving. He further stated that he offered to render assistance to the injured parties pending the arrival of an ambulance to carry plaintiff away. The tendency of defendant's evidence, and that of his witnesses, was to disclaim negligence, as alleged in the complaint, and to deny any fault with respect to the collision.
Emmie Sue Lyman a negro witness for defendant, testified as to the relative positions of the vehicles before and at the time of the collision, and that defendant stopped his automobile after the front end was slightly in the intersection; that he proceeded toward the center of the intersection when the crash came. Also, she testified that she had been subpoened by both sides, and that prior to the trial she had been interviewed on the subject of the collision by attorney for the plaintiff. She denied having made certain statements to the attorney as to her whereabouts on Palmer Street about the time of the collision.
The trial court denied defendant's request for the affirmative charge with hypothesis and submitted the case to the jury on plaintiff's allegation of negligence proximately causing his injuries; also, the court submitted to the jury defendant's plea that plaintiff was guilty of negligence that proximately contributed to his injuries
The court, in the course of its oral charge, charged the jury in conformity to a like statement of law pronounced by this court in the case of Smith v. Lawson, 264 Ala. 389, 88 So.2d 322(3, 4). The charge was as follows:
Under the evidence in this cause, we think the issue of negligence on the part of the defendant and of the plaintiff, together with the relative questions of proximate cause, was properly submitted to the jury for decision, and that the trial judge correctly refused defendant's request for the affirmative charge with hypothesis. It was for the jury to determine if the defendant obeyed the rules of conduct which the trial judge, in the foregoing excerpt, correctly stated was the law applicable to the instant case.
Appellant contends that there was a variance between the averment in the count submitted to the jury, namely, that the defendant allowed or permitted his "said automobile to run over, upon or against said motor vehicle," and the proof, which shows that plaintiff's motorbike ran into the side of defendant's automobile.
It is our opinion that this contention of appellant is without merit. The case of International Harvester Co. v. Williams, 222 Ala. 589, 133 So. 270, is decisive of this insistence. We quote therefrom as follows:
Plaintiff's counsel, in his argument to the jury, observed: "Due to the breed of the race, we were afraid she would change her testimony, which she did." This reference was to Emmie Sue Lyman, a negro witness introduced by defendant.
Appellee, in his brief, admits that this statement was made by his counsel in the course of his argument, but contends that it was in reply to an argument by counsel for appellant.
This effort on the part of appellee to justify that remark of his counsel, as aforequoted, is not referable to the record here by which this court is bound. Campbell v. Davis, 274 Ala. 555, 150 So.2d 187(8); Gorum v. Samuel, 274 Ala. 690, 151 So.2d 393(1). Hence, we pretermit consideration of the stated justification.
We consider the argument as an eradicable attempt, whether consciously or unconsciously done, to array race against race. The plaintiff was a white person; also a passenger on the back of the bike was white. The defendant was a negro; likewise, his passenger was of the same color. This, in addition to the negro witness, Emmie Sue Lyman, who testified that she saw the collision.
The implication was that the witness, Emmie Sue Lyman, because of her breed or being of the negro race, could not be
The court sustained defendant's objection to the argument. No further action was invoked by the defendant and the court did not ex mero motu say anything else to the jury with respect thereto.
In the case of C. C. Hooper Cafe Co. v. Henderson, 223 Ala. 579, 137 So. 419, wherein counsel's improper argument was made the basis of a motion for a new trial, this court observed as follows:
The appellate courts of this state scrutinize very carefully the injection of any issue, by argument or otherwise, that is calculated to create in the minds of the jury ineradicable bias or prejudice that factorially motivates a verdict. No objection thereto is necessary at the time, nor is a motion for a mistrial necessary, to preserve the point. Presentment by motion for a new trial is sufficient. Colquett v. Williams, 264 Ala. 214, 86 So.2d 381(1); Feore v. Trammel, 212 Ala. 325, 102 So. 529(3). Although not specifically stated, there are other cases of this court to the same effect. Florence Cotton & Iron Co. v. Field, 104 Ala. 471, 480, 16 So. 538, 540 and Birmingham Ry., Light & Power Co. v. Drennen, 175 Ala. 338, 57 So. 876, 880, Ann.Cas. 1914C 1037. For an interpretation of these cases, see Birmingham Railway, Light & Power Co. v. Gonzalez, 183 Ala. 273, 287, 61 So. 80, 84(12).
We further observed in the case of Birmingham Railway, Light & Power Co. v. Gonzalez, supra [61 So. 80(13)], as follows:
We disagree with appellant's insistence contained in ground 21 of his motion for a new trial, assigned as error, that this observation of counsel for plaintiff in his argument "was so prejudicial, and the effect of such prejudice so ineradicable in the minds of the jury, as to result in an unfair and prejudicial verdict against the defendant." The argument was improper, but not incurable. Objection of defendant thereto was sustained, and no further action on the part of the court was invoked. C. C. Hooper Cafe Co. v. Henderson, supra.
Nor can we attach error to the remarks because, as appellant contends, there was at the time of the trial a general atmosphere of hostility toward negroes in areas of the State, due to racial tension brought about by the activities of certain named persons. We have no judicial knowledge of conditions existing in Butler
We are not in accord with appellant's contention that ground 20 of his motion for a new trial, assigned as error, has merit. This ground is as follows:
There was evidence adduced by defendant's counsel that defendant at the time lived in Tuskegee, Alabama, and was engaged as an Assistant Teacher Trainer in Agricultural Education, employed by the Department of Education of Alabama, and stationed in Tuskegee. The defendant further testified that at the time of the accident he was enroute home. On cross-examination, defendant was asked the question and he answered as follows:
We think the argument of counsel for plaintiff that the defendant "lived in Tuskegee," and was "in a hurry to get home," was within factual bounds of the testimony and the inference that might be drawn therefrom.
Another ground of the motion is that the award of the jury is excessive. The cases cited by appellant were decided at the time when the purchasing power of the dollar was far in excess of that power at the present time. Due recognition of the economic changes and the unwillingness of this court to accept as a criterion of present awards the amounts heretofore considered ample compensation is reflected in the case of Southern Railway Company v. Stallings, 268 Ala. 463, 107 So.2d 873 (1-4) (decided Nov. 6, 1958). We quote therefrom as follows:
Applicable here, are the comments of this court in the same case as follows:
We have examined and considered the other assignments of error that have been adequately argued in compliance with our rules, and we fail to find any error upon which reversal of the judgment in this case could be predicated. Because no prejudicial error to reverse has been assigned, we think the judgment should be affirmed. It is so ordered.
The foregoing opinion was prepared by B. W. Simmons, Supernumerary Circuit Judge, and was adopted by the court as its opinion.
LIVINGSTON, C. J., and SIMPSON, MERRILL and HARWOOD, JJ., concur.