Konidaris v. Burgess

Supreme Court of Alabama

Konidaris v. Burgess

137 So. 303, 223 Ala. 512, 1931 Ala. LEXIS 509

CourtSupreme Court of Alabama

DecidedOctober 29, 1931

Docket7 Div. 60.

StatusPublished

Cited by5 cases

This text of 137 So. 303 (Konidaris v. Burgess) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Konidaris v. Burgess, 137 So. 303, 223 Ala. 512, 1931 Ala. LEXIS 509 (Ala. 1931).

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Opinion

BOULDIN, J.

Action for damages resulting from collision of plaintiff’s truck with defendant’s automobile at the intersection of Third street and Second avenue in the city of Attalla.

Only one ruling upon 'evidence is presented. Mollie Huff, witness for defendant, having testified she saw the truck pass her house just before the collision, going mighty fast, and there were several boys in the truck, said: “The boys were playing in that truck, just like a crowd of boys would, and I says to another colored woman — ” At this point the court sustained plaintiff’s objection, and what she said to the other woman does not appear.’ She did not see the collision, which occurred at the next street crossing as the truck was headed. The truck was being driven by plaintiff’s son, 16 years of age. So far as appears her remark to the other colored woman was mere hearsay and irrelevant. It does not come within the rule of declarations as part of the res gestee as in Stoudemire v. *513 Davis, 208 Ala. 495, 94 So. 498. See, also, Travelers’ Ins. Co. v. Whitman, 202 Ala. 388, 80 So. 470.

The verdict of the jury specified that the finding for plaintiff was on count 1, a simple negligence count.

Refusal of the affirmative charge for defendant on count 3, the wanton count, was harmless.

Defendant’s refused charges, 2, 3, and 4, directed to the issue of contributory negligence, were fully covered by given charge 2 and the court’s oral charge.

The evidence was in sharp conflict touching the negligence of defendant as the proximate cause of the collision and consequent injury to the truck, and also touching the negligence of the driver of the truck as a contributing proximate cause.

We find no good reason to disturb the finding of the jury on the evidence. A discussion of same in detail is deemed unnecessary.

Affirmed.

ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.

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BOULDIN, J.

Action for damages resulting from collision of plaintiff’s truck with defendant’s automobile at the intersection of Third street and Second avenue in the city of Attalla.

Only one ruling upon 'evidence is presented. Mollie Huff, witness for defendant, having testified she saw the truck pass her house just before the collision, going mighty fast, and there were several boys in the truck, said: “The boys were playing in that truck, just like a crowd of boys would, and I says to another colored woman — ” At this point the court sustained plaintiff’s objection, and what she said to the other woman does not appear.’ She did not see the collision, which occurred at the next street crossing as the truck was headed. The truck was being driven by plaintiff’s son, 16 years of age. So far as appears her remark to the other colored woman was mere hearsay and irrelevant. It does not come within the rule of declarations as part of the res gestee as in Stoudemire v. *513 Davis, 208 Ala. 495, 94 So. 498. See, also, Travelers’ Ins. Co. v. Whitman, 202 Ala. 388, 80 So. 470.

The verdict of the jury specified that the finding for plaintiff was on count 1, a simple negligence count.

Refusal of the affirmative charge for defendant on count 3, the wanton count, was harmless.

Defendant’s refused charges, 2, 3, and 4, directed to the issue of contributory negligence, were fully covered by given charge 2 and the court’s oral charge.

The evidence was in sharp conflict touching the negligence of defendant as the proximate cause of the collision and consequent injury to the truck, and also touching the negligence of the driver of the truck as a contributing proximate cause.

We find no good reason to disturb the finding of the jury on the evidence. A discussion of same in detail is deemed unnecessary.

Affirmed.

ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.

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137 So. 303, 223 Ala. 512, 1931 Ala. LEXIS 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/konidaris-v-burgess-ala-1931.

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