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HIGHTOWER v. CITIZENS PHARMACY, INC., et al.
34967.
Damages. Before Judge Baldwin. Macon City Court. October 20, 1953.
FELTON, C. J.
1. The court did not err in directing a verdict in favor of the defendant Robert Morris, since the undisputed evidence shows that his parking a truck at night without lights was not a contributing proximate cause of the plaintiff's injuries.
2. The court did not err in refusing to allow the plaintiff to impeach an absent witness, subpoenaed by him, by showing his financial interest in the defendant corporation, for the purpose of preventing the jury from presuming that the absent witness's testimony would have been against the plaintiff.
DeWitt Hightower filed an action against Robert Morris, Edward Green Foster, and Citizens Pharmacy, Inc., Foster's employer, for damages growing out of an automobile collision, the petition alleging that the injuries were caused by the joint and concurrent negligence of Foster, the operator of the automobile which struck the plaintiff, and of Morris, the owner and operator of a truck which was parked at night without a light on the south side of First Avenue in Macon. Morris's general and special demurrers to the petition were overruled, and the ruling is not excepted to. The court directed a verdict for the defendant Morris, and denied a motion for continuance made by counsel fair the plaintiff 50 that the alleged error in directing the verdict for Morris might be reviewed. The jury found for the plaintiff against the remaining defendants in the sum of $325.
The petition alleged that the defendant Morris was negligent in parking his vehicle on a street in Macon at night without marking it with a red light in the rear thereof, contrary to a city ordinance; and alleged that the defendant Foster was negligent in violating the city speed ordinance, in violating the city "visual alertness" ordinance, in violating the requirements of Code (Ann.) 68-316 as to headlights, in violating the requirements of Code (Ann.) 68-302 as to serviceable brakes, in failing to sound his horn or otherwise warn the plaintiff, and in driving his vehicle into and against the plaintiff. It was alleged that the negligence of Morris, owner and operator of the truck which was parked without a light, operated jointly and concurrently with the negligence of Foster, the operator of the Nash automobile that struck the plaintiff, to bring about the injuries complained of. The big question for decision is whether or not the injuries complained of resulted from the joint and concurrent negligence of the two defendants, Morris and Foster, or from the negligence of Foster alone. The evidence necessary for a decision of this question is as follows:
Thomas H. Winchester, Jr., a civil engineer, located First Avenue as being within the city limits of Macon, and stated that he had made a map of the area where the collision happened. The area slopes downhill toward Middle Street, and First Avenue is 25 feet wide from curb to curb. If a truck 8 feet wide were parked against the south curb, there would remain a little less than 17 feet--16.8 feet from the left side of the parked truck to the north curb of First Avenue. If an automobile, the average width of which is a little over 6 feet, were placed between the north curb of First Avenue and the left side of the truck, there could remain a little over 3 feet between the right side of the car and the left side of the truck, and at the same time there would -- be 7 1/2 feet from the left side of the car to the north side of the street. From the area where the collision occurred to the street light at Craft Street is 187 feet, and it is 434 feet to the street light at Middle Street.
Robert Morris testified that he owned the Chevrolet truck which was parked on the south side of First Avenue. He had parked the truck so that it was pointed down the hill with the tail about even with Hightower's steps and with the right wheels up against the south curb. The truck was equipped with a flat body which was about 7 1/2 feet wide. At the time of the collision Morris was on the back of the truck filling a tub with stove wood which he had come to deliver to Hightower's house. The truck was the only vehicle parked along First Avenue at that time, and there was no light on the porch. The collision happened at night and it was about 10 or 10:30 when he got to
Hightower's house. Although his truck was equipped with an electric tail light, it was not burning at the time of the collision because he did not have it on. The truck was black, and Morris had an unpainted, natural frame on it. A taxicab came up the hill and stepped across the street opposite from Morris's truck. Hightower got out and in a second or two the cab continued on up the hill. As soon as the cab started up the hill, another car, the car that hit Hightower, came down the hill with the motion making a lot of noise. The car sounded as though it were going about 40 miles per hour, and it had very bright lights on it. Morris scrambled over to the right of the bed of his truck, over by the curb because he thought the oncoming car might hit the truck at the speed it seemed to be going. When the oncoming car was about 6 or 8 feet from the truck, the driver locked his brakes and turned to his left. He heard the car hit Hightower and then saw Hightower rolling down the street. He believed that the car was traveling about 40 miles per hour because it sounded like that.
I. H. Milner, the cab driver, testified that he drove Hightower home on the night he was injured. When he let Hightower out, Hightower got out on the dirt sidewalk on the north side of the street opposite from his home. The cab was headed up the hill, so that Hightower's house was on the left. After he was paid, the witness pulled straight on up First Avenue. He met the car that struck Hightower, as it was coming down the Hill in the opposite direction, and it was traveling at an estimated speed of between 30 and 35 miles per hour. Hearing brakes squeal, he looked around and the car looked as though it were coming toward the left hand side of the street. He was two or three car lengths away when he heard brakes squeal. He stated that Hightower was a tall man, about 6 feet 3 inches, and that he could easily see over his taxicab which was not over 6 feet tall. He could see Morris's car coming down the hill, and Hightower would have had no trouble seeing it if he had been looking. DeWitt Hightower, the plaintiff, testified that he hired Milner to drive him home from the barber shop where he worked on Saturdays. As the cab approached his house, it was going uphill, and Milner stopped on the north curb, where he, the witness, alighted. Morris's truck was parked in front of his house, over by the south curb, headed down the hill, exactly opposite from where he alighted. The cab pulled off and left him standing on the curb. After the cab had left, he took one step down off the curb, and waited for the Nash, which he saw and which was headed down the hill from his left, to pass. He knew that there was enough room for the Nash to get by. He did not realize that the car was coming as fast as it was until it got right at the rear of the truck. All at once the driver put on brakes and whirled across the street into him. When he saw the cab "whip" around the truck, he whirled in an effort to get back to the curb. When the driver threw on brakes arid whirled across the street to miss the truck, he tried unsuccessfully to get back to the curb. When this happened, the cab was about three car lengths on up the hill. The Nash was within 30 feet of the back of the truck when it suddenly cut across the street.
The defendant Edward Green Foster testified in part: "I turned in First Avenue that night off of Pursley street. As I came down First Avenue across Craft Street I saw this taxicab coming up the hill. I saw it come to a stop. When I first saw it I was driving about twenty or twenty-five miles an hour. I was in no particular hurry to get anywhere. When I saw this taxicab it had its lights on bright. I don't remember right now how close I got to the parked taxicab before he started to moving off; probably about three or four car lengths. It was a pretty good little piece back up the road that I first observed that truck that was parked over there on my right-hand side of the street.
The cab was going in the opposite direction from me. It had gotten maybe two or three car lengths away from the truck before it reached me; maybe not that far; I couldn't state that exactly. I was slowing down when I was approaching those vehicles there that were sort of close together. I first saw DeWitt Hightower when I was almost upon him. At that time he was walking across the street. I guess he had gotten a little over middle-ways out in the street. I didn't give him a signal or anything; I swerved to the left of the road, thinking he was going on across, and he doubled back. If he had taken a step or two more I would have missed him completely. I put on brakes hard to try to stop when I first saw him. I couldn't exactly say how close that was, but I was right upon him. I brought my car to a complete stop. I stopped parallel with the parked truck, maybe a little bit back, just opposite the truck. I was maybe three, four or-five feet from the left-hand curb when I stopped. My left side was three, four, or five feet off the curb, or maybe better than that. The center of my car hit this man . . . That Nash car I was driving is the average width car; I would say about six feet wide or a little better. When I stopped my car DeWitt was about five, six, or seven feet in front of me. He was going to the side. I don't remember now whether he was on the sidewalk or in the road. I didn't have to back my car up to get off of him. My brakes were in good working order. My lights were fair . . . As I came on down First Avenue that night, there were no other cars except the taxicab, my car, and the truck, that I can remember. I don't believe it was any others on the street except the car and the wood truck. My headlights were in good working order. They were on dim. I think there was something to keep me from seeing High tower sooner than I did. It was probably because my vision was stunted from the headlights on this taxi. I couldn't directly tell whether he walked out from behind the taxi or not. I believe he walked out from behind it though. The taxicab and the lights combined kept me from seeing him until I did see him. At the time I first saw him and started to putting on brakes my speed was slacking off. I was going anywhere from 15 to 20 miles an hour on down, coming down to a complete stop. As to whether I saw the taxicab or the parked truck first, I imagine I saw them both. It's been so long I wouldn't care to say whether I saw the taxicab or the parked truck first, because I might not remember it exactly . . . I will state now that I did see the taxicab before I saw the truck, because it's true. Since I read that it refreshes my memory. I am positive. The reason I saw the cab first because it had bright lights on it . . . As I was coming down the hill after I passed Craft Street I was coming
down there in the vicinity of where the wreck happened. As I passed Craft Street, the right side of my car, the right wheels of my car, where anywhere from 18 inches to 3 feet from the right-hand edge of the pavement. In other words, 1 was driving along and my right wheels were 18 inches to 3 feet from the night-hand curb. When I first saw the taxicab, the right-hand side of my car was about the same distance from the right-hand curb. That's when I saw the taxicab. When I first saw the truck the right-hand side of my car was about the same, 18 inches to three feet. I first turned to the left when 1 saw the truck. I don't remember now how far I was from the truck when I saw it. It was maybe five or six car lengths. As to whether I think I was within five or six car lengths of the truck when I first saw the truck, I don't remember. My best opinion is anywhere from three to six car lengths. It could have been more than three car lengths. It could have been as close as three, but my memory doesn't serve me that well. When I first saw the truck I cut to the left in order to go around it. I believe the cab had started moving at that time, taking off from putting his passenger out. The cab had not exactly gone on by me at the time I first saw the truck. I mean it was moving. It hadn't quite got to me. It was coming up the hill toward me, but hadn't quite gotten to me. As to how I know it was moving, you can tell a car when it's moving. I am positive it was moving. Then I cut to the left in order to go around the parked truck. I cut to the left enough room to pass the truck before I saw DeWitt. I was going to miss the truck something like a couple of feet with the right side of my car. When I first saw DeWitt I was right upon him . . . about a half car length, maybe a car length . . . At the instant before I saw DeWitt Hightower, I had already moved far enough over to the left in order to get by the parked truck. I imagine the taxicab had already gotten around back of me by that time. I wouldn't know how far behind me he was . . . In any event, I had moved over far enough to get around the truck. I was in the swing to go around.
After I saw DeWitt I cut even further to the left than I had been before. I cut further to the left and tried to avoid hitting him. I didn't think it was necessary to blow my horn. I was too close upon him to do that . . . I couldn't say whether it's correct that it's 200 or 250 feet from Craft Street down to DeWitt Hightower's house. When I got to wherever I could see down the hill, I believe I saw the taxicab's lights before I saw the parked truck. I believe it was moving off when I got there, just moving off. As soon as I saw the taxicab to my left, then straight ahead of me I saw the parked truck. I could see the parked truck from my lights. I don't remember now whether my lights picked up the red reflector light on there, but I remember I did see the truck. As to whether I saw the truck as soon as I came across Craft Street, I would say I saw it momentarily after I saw the taxi's headlights. At that time I was running about 20 or 25 miles an hour. If there had been any reason for me to do it, 1 would have had plenty of time to stop before I got to that truck. I wouldn't say I could have stopped when I was half-way there, but I could have stopped before I got on the truck. I imagine I would have had time to stop before I got to that truck if I had been going as fast as 50 or 60 miles an hour. So far as I knew, there was no reason for me to stop or check the speed of my car at that time. I was just running along there at about 20 or 25 miles an hour. As to whether there was no reason for me to stop my car until I got nearly to the truck, I didn't see any reason for any stop at all at that time. As I was coming down from Pursley to Craft Street I was not driving about the middle of the lane. I was driving on my right. Then when I saw the truck I started kind of veering to my left so that in my natural driving I would miss the truck. When the front of my car got about even with the rear of the truck and I was passing it, then the emergency came up and I had to do something. It seems logical that I had gotten to the point where I was missing the truck before anything happened to cause me to change my course or to do something in a hurry. . . . As I came from Craft Street way up here, I was driving to the right of the center line. As I came down from Craft Street toward Middle Street, I saw the truck there and I was naturally just bearing out so as to miss the truck when I got there. When I first saw DeWitt Hightower I was a little further along than that position. Might have been a little further along than that position. As I was coming down First Avenue I was driving so as to miss the truck, which I saw
from a normal position. I stated if there had been any necessity for it I had plenty of time to stop. As to whether I had gotten just a little bit to the rear of the truck before I saw DeWitt Hightower, I was in a normal position for passing the truck. I couldn't state definitely how far back of the truck I was . . . I said even if I had been going forty or fifty miles an hour when I first saw the truck, I think I could have stopped if I had had any reason to stop."
1. The court did not err in directing a verdict in favor of the defendant Robert Morris. There is no dispute as to what the law is on the subject of concurring negligence. The plaintiff in error contends that, in spite of the testimony of the driver of the car which hit the plaintiff, the other evidence made a question for the jury as to whether the parking of the truck without lights contributed to and was one of the concurring proximate causes of the collision. We are of the opinion that from the testimony of Foster, who was driving the car which hit the plaintiff, the absence of the lights from the parked truck was not one of the contributing causes of the plaintiff's injuries. It is true that he did not attempt to state exactly how far he was behind the truck before he saw it, but he did say that he saw it before he reached it and turned to avoid hitting it before he saw the plaintiff crossing the street. In spite of the fact that he made estimates of the distance which varied, we do not think that the estimates are necessarily inconsistent with the fact that he saw the truck in time to avoid hitting it before he saw the plaintiff. Since the parking of the truck was legal, its mere presence could not be considered negligence nor a contributing cause of the injury. And since the driver Foster saw the truck in time to avoid it, the absence of lights became immaterial. Neither did the testimony of the plaintiff, to the effect that Foster swerved to his left to miss the truck, make a question for the jury, as he could not possibly know as a fact why Foster turned to the left. The question of whether Foster could have stopped before he reached the truck is irrelevant, and therefore whether he could have stopped before reaching the truck if he had been going fifty miles an hour is irrelevant, and Foster's opinion that he could have stopped before reaching the truck if he had been going fifty miles an hour would not be such a conflict in his testimony as to make a question of fact for a jury. The evidence above referred to, combined with the other evidence, did not make a jury issue, either because of conflicting testimony among the witnesses or because of circumstantial evidence which might have authorized a finding based on it in preference to the testimony of Foster. The vital testimony of Foster was consistent with the circumstantial evidence; it was uncontradicted and unimpeached, and under authorities too numerous to mention could not be rejected.
2. It was not error for the court to refuse to admit evidence showing that a physician, who had been subpoenaed by the plaintiff and was not present, was a stockholder in Citizens Pharmacy, Inc. The purpose of the offering of such evidence was to show that the failure of the plaintiff to use the witness should not raise a presumption that the witness's testimony would have been unfavorable. In the first place, there was no showing that any of the jury knew that the plaintiff had subpoenaed the witness, nor any showing that the testimony of the witness would have been unfavorable. In the second place, the court stated that the plaintiff could explain the witness's absence, and no motion for a continuance was made on the ground of the absence of the witness. Furthermore, a party cannot impeach his own witness for any purpose unless entrapped. It would be quite anomalous to allow a party to subpoena a witness on the strength of his knowledge of essential facts, character, and integrity for the purpose of relying on his testimony to prevail in a case, and then, if the witness was absent from court, to show that he would probably testify against the party who subpoenaed him, not for the reason that the truth of the facts lie would testify to would be contrary to that party's interest, but because he would be influenced to testify to falsehoods because he was financially interested in a defendant corporation against which recovery was sought. It would have been a simple matter for the plaintiff's counsel to explain to the jury why the witness was not present, which he had the court's permission to do. The question whether the witness was required to be resubpoenaed is not before us for consideration, in view of the fact that no motion for continuance was made.
Other questions raised and not herein ruled on have been abandoned.
The court did not err in denying the motion for a new trial.
Judgment affirmed. Quillian and Nichols, JJ., concur.
Popper & Morgan Martin, Snow & Grant, contra.
Harris, Russell, Weaver & Watkins, John D. Comer, for plaintiff in error.
DECIDED APRIL 12, 1954.
Saturday May 23 03:38 EDT


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