Summary
In Montgomery City Lines v. Scott, 248 Ala. 27, 26 So.2d 200, the court held that the trial court did not err in granting the plaintiff's motion for a new trial because of the giving, at defendant's request, of a charge designated as charge 12.
Summary of this case from Pearson v. FountainOpinion
3 Div. 440.
May 16, 1946.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Steiner, Crum Weil, of Montgomery, for appellant.
Charge 12 is not subject to the criticism that it instructs, as matter of law, that it was the duty of plaintiff to be on the lookout for approaching vehicles, but that it was the duty of plaintiff, in the circumstances, to use due care and caution to avoid injury and to be on the lookout for vehicles. If the charge be considered misleading, it was the duty of plaintiff to request an explanatory charge. 18 Ala.Dig. 862, 256(1). But if the charge was subject to the objection pointed out, it was proper under the facts and circumstances of the case, where both parties had equal rights in the street and both, as matter of law, were under reciprocal duties to exercise due care by looking out for the safety of the other, as well as for their own safety. Mertens v. Lake Shore Y. C. T. Co., 195 Wis. 646, 218 N.W. 85; Weaver v. Pickering, 279 Pa. 214, 123 A. 777; Krupien v. Doolittle, 117 Conn. 534, 169 A. 268; Kalify v. Udin, 52 R.I. 191, 159 A. 644; Moseley v. Mills, 145 Wn. 253, 259 P. 715; Bence v. Teddy's Taxi, 101 Cal.App. 748, 283 P. 86; Davis v. John Breuner Co., 167 Cal. 683, 140 P. 586; Rochford v. Stankewicz, 108 N.J.L. 265, 158 A. 386; Brickell v. Trecker, 176 Wis. 557, 186 N.W. 593; 2 R.C.L. 1186; Henderson v. O'Leary, 177 Wis. 130, 187 N.W. 994, 24 A.L.R. 942; Barbour v. Shebor, 177 Ala. 304, 58 So. 276; Brown v. Bush, 220 Ala. 130, 124 So. 300; Anniston E. G. Co. v. Rosen, 159 Ala. 195, 48 So. 798, 133 Am.St.Rep. 32; Schneider v. Mobile, c. R. Co., 146 Ala. 344, 40 So. 761; Racine Tire Co. v. Grady, 205 Ala. 423, 88 So. 337; Salter v. Carlisle, 206 Ala. 163, 90 So. 283; Harrison v. Mobile L. R. Co., 233 Ala. 393, 171 So. 742. Moreover, if the charge was erroneous, plaintiff was not injured, since she got the full benefit of the proposition for which she contends by special charges given at her request and by the oral charge. 18 Ala.Dig. 892, 295; Hammett v. B. R. L. P. Co., 202 Ala. 520, 81 So. 22; Ogburn v. Montague, 26 Ala. App. 166, 155 So. 633; Sloss-S. S. I. Co. v. Willingham, 29 Ala. App. 569, 199 So. 15; Birmingham Fuel Co. v. Stocks, 14 Ala. App. 136, 68 So. 568. And under the evidence the verdict rendered was the only one sustainable. Prior v. Pounds, 113 Fla. 308, 151 So. 890; Sup.Ct. Rule 45, 7 Code, p. 1022. No presumption in favor of the trial court exists as to a ruling relating solely to matters of law. Code 1940, Tit. 7, § 764; O'Neal v. Turner, 230 Ala. 24, 158 So. 801; Decatur v. Poole, 238 Ala. 224, 189 So. 743; American Life Ins. Co. v. Williams, 234 Ala. 469, 175 So. 554, 112 A.L.R. 1215. Of charges susceptible of two constructions, appellate courts will indulge the construction which will sustain rather than condemn. Birmingham So. R. Co. v. Harrison, 203 Ala. 284, 82 So. 534. There was no error in giving charge 6. Smith v. Crenshaw, 220 Ala. 510, 126 So. 127; Montgomery L. T. Co. v. Harris, 197 Ala. 236, 72 So. 545; Brasfield v. Hood, 221 Ala. 240, 128 So. 433; Roberts v. McCall, 245 Ala. 359, 17 So.2d 159. It is not a charge on the facts but on a proposition of law. If thought to be misleading, plaintiff should have requested an explanatory charge. Hammett v. B. R. L. P. Co., supra; 18 Ala.Dig. 862, 256(2); Harris v. Basden, 162 Ala. 367, 50 So. 321.
Hill, Hill, Whiting Rives, of Montgomery, and Holley, Milner Holley, of Wetumpka, for appellee.
The usual rule of ordinary care does not impose upon pedestrians the burden of being constantly on the lookout to see if their path is free of dangerous defects. Adler v. Martin, 179 Ala. 97, 59 So. 597; 79 A.L.R. 1082. No duty is imposed upon pedestrians to keep a special lookout for automobiles or approaching vehicles, but only the general duty to exercise due care under the circumstances; and whether or not such failure is negligence at all is a question for the jury on the particular facts of each case. Shafer v. Myers, 215 Ala. 678, 112 So. 230. Plaintiff, who was within the walkway for pedestrians, and who had the green light, was in the lawful use of the street, and was under no duty to keep a lookout to the rear for approaching vehicles, or for vehicles turning into the street without warning. Code 1940, Tit. 36, § 17; W. W. Pickle Co. v. Baskin, 236 Ala. 168, 181 So. 765; 79 A.L.R. 1093; 44 A.L.R. 1301. Charge 12 instructs as matter of law that it was the duty of plaintiff at the time and place to keep a lookout for approaching vehicles; it ignores tendencies of the evidence that she was struck from the rear, and in effect instructs that she was bound to keep a lookout to the rear. It was fatally defective. Lambert v. Birmingham Elec. Co., 244 Ala. 333, 335, 13 So.2d 579. Even if the charge be construed as merely misleading, the action of the court in setting aside the verdict may be justified on that ground. Proctor v. Coffey, 227 Ala. 318, 149 So. 838; Montgomery L. T. Co. v. Riverside Co., 188 Ala. 380, 66 So. 459. The trial court having found that the giving of the charge was error injuriously affecting the substantial rights of the plaintiff, this Court will not disturb this finding. Supreme Court Rule 45 cannot be applied. Wainwright v. Anderton, 218 Ala. 623, 119 So. 861; Montgomery L. T. Co. v. Riverside Co., supra; Peck v. Henderson, 218 Ala. 233, 118 So. 262; 1 Ala.Dig., App. Error, § 1031(6). That the jury may have been correctly instructed in other charges does not cure the error. Clinton Min. Co. v. Bradford, 192 Ala. 576, 69 So. 4; People's Bank v. McAleer, 204 Ala. 101, 85 So. 413. A review of the action of the trial court in granting a new trial is not limited to the ground of the motion on which it was granted. The giving of charge 6 for defendant will be considered. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224; 1 Ala.Dig., App. Error, § 854(6); Lynn v. Mellon, 217 Ala. 75, 114 So. 680. Charge 6 is erroneous; it assumes the conduct of plaintiff was negligent, and instructs as matter of law that her conduct (whether negligent or not) was contributory negligence if it proximately contributed to her injury. Ala.Dig., Trial, § 191; Elder v. Ralls Sanitarium, 219 Ala. 298, 122 So. 41; Western S.C. F. Co. v. Cunningham, 158 Ala. 369, 48 So. 109; Tyson v. Winter, 225 Ala. 437, 143 So. 460; Alabama Power Co. v. McGehee, 228 Ala. 505, 154 So. 105; Dye-Washburn Hotel Co. v. Aldridge, 207 Ala. 471, 93 So. 512. Charge 12 invaded the province of the jury. McBride v. Barclay, 219 Ala. 475, 122 So. 642.
The appeal is from a judgment granting plaintiff a new trial, based on the giving of an erroneous charge requested by defendant, Montgomery City Lines, Inc.
The charge (12) is: "The Court charges the jury that it was the duty of the plaintiff in walking upon or across the street at the time and place of the accident, herself to use due care and caution to avoid injury and to be on the lookout for moving vehicles approaching, and if she negligently and thoughtlessly walked into the side of the moving bus, or in front of and in dangerous proximity to the moving bus, and thereby proximately contributed in any degree, however slight, to her hurt, then she would not be entitled to recover in this case; and in that event you should return a verdict for the defendant."
The criticism against the charge is that the emphasized clause erroneously pretermitted an inquiry by the jury of the negligence, vel non, of the plaintiff if she failed "to be on the lookout for moving vehicles approaching" and declared such conduct to be negligence per se.
Appellant rests its claim for reversal on the insistence that (1) if so construed, the charge was correct as applicable to the proven facts, and (2) even if erroneous, no injury intervened by giving it.
On a careful consideration in consultation, the court has concluded that the judgment granting the new trial must be affirmed. It is the opinion of the writer, concurred in by Mr. Justice Livingston, that a correct grammatical construction of the charge subjects it to the stated criticism and instructs the jury of the plaintiff's duty, as a matter of law, to be on the lookout for all moving vehicles approaching, and takes away from them the right to determine whether a failure to comply with such duty would, under the circumstances, be negligence. The other justices are uncertain of this construction, but view the charge as clearly misleading to this end, resulting in the same conclusion of affirmance as hereafter indicated.
The general rule is that a pedestrian is not required as precedent for recovery to keep a special lookout for vehicles when crossing a city street, but is only enjoined to exercise due care under the circumstances. And whether or not the omission to do so exhibited a want of such care is a question of fact for the jury to determine. Shafer v. Myers, 215 Ala. 678, 112 So. 230; Adler v. Martin, 179 Ala. 97, 59 So. 597; W W Pickle Canning Co. v. Baskin, 236 Ala. 168, 181 So. 765. See also 79 A.L.R. 1082, notes a and b.
It is argued with much force, first, that the accepted doctrine can not be invoked under the proven circumstances of the case, and, second, that even if that position be unsound there was no injury in giving the charge, because of other good charges given and because no other conclusion was open to the jury, anyway, except the verdict returned (for defendant).
Giving due and impartial consideration to this argument, we are persuaded that the case does not exclude application of the general rule adverted to above and that, for the instruction (whether erroneously or misleadingly) to impute negligence to plaintiff, as a matter of law, for failing to keep a special lookout (for, including appellant's, moving vehicles) and thereby preclude a determination by the jury of whether or not such conduct was negligent under the circumstances, was not only error, but injurious.
A sufficient reason, others not considered, is that the charge in so instructing the jury entirely ignored the plaintiff's evidence that the bus approached, from rearward, the pedestrian cross-way where she was walking and struck her unawares as it turned on the red signal light into the street she was crossing, without giving any warning of its approach.
The plaintiff, crossing on a green light in the lawful use of the street, was under no extreme duty, as a matter of law, to keep a lookout to the rear for approaching vehicles (W W Pickle Canning Co. v. Baskin, supra; 79 A.L.R. 1091, note V), and the charge, in withdrawing from the jury the right to determine whether or not, under the described situation, she was negligent in failing to keep such lookout, in effect, ignored this theory of the case. In so doing the charge was rendered improper. Lambert v. Birmingham Electric Co., 244 Ala. 333 (2), 13 So.2d 579; Montgomery Light Traction Co. v. Harris, 197 Ala. 358(5), 72 So. 619.
For the same reason to give it was injurious. It was the duty of the bus driver in turning into the street over which plaintiff was walking, as described by her, to "give a clearly audible signal by sounding the horn" (Code 1940, Title 36, § 17) and if the jury should have credited her evidence, it was open to them to have concluded against defendant for its negligence in the violation of this duty and in her favor on the issue of her alleged contributory negligence in failing to look for the approaching bus. The charge pretermitted the possibility of either decision and was therefore prejudicially erroneous.
Should we adopt the construction that, at most, the charge was merely misleading, a reversal would still be unwarranted in view of the favorable presumption attending the ruling of the trial court. By granting the new trial, the misleading and injurious tendencies of the charge were thus declared and no case is shown for overriding this presumption. Proctor v. Coffey, 227 Ala. 318(7), 149 So. 838; Montgomery Light Traction Co. v. Riverside Co., 188 Ala. 380, 66 So. 459; Thames v. Louisville N. R. Co., 208 Ala. 255, 94 So. 487.
We do not think the error could be regarded as cured by the giving of other correct charges. The result was that the jury was contradictorily advised and might not have known which instruction to follow. Clinton Mining Co. v. Bradford, 192 Ala. 576, 592(16), 69 So. 4; Peoples Bank v. McAleer, 204 Ala. 101 (6), 85 So. 413. In the face of the opinion of the trial court, by granting the new trial, that the giving of the instruction was injurious, and the presumed correctness of that ruling, it would seem improper to invoke application of Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
It is deemed appropriate to point out that given charge No. 6 was likewise erroneous. It is invasive of the province of the jury in assuming the "conduct" of the plaintiff to have been negligent (Elder v. Ralls Sanitarium, Inc., et al., 219 Ala. 298 (11), 122 So. 41; Western Steel Car Foundry Co. v. Cunningham, 158 Ala. 369, 48 So. 109; Tyson v. Winter, 225 Ala. 437, 143 So. 460) and is also faulty in not predicting decision on belief by the jury of properly hypothesized evidence. Alabama Power Co. v. McGehee, 228 Ala. 505, 154 So. 105; Dye-Washburn Hotel Co. v. Aldridge, 207 Ala. 471, 93 So. 512; Shipp v. Shelton, 193 Ala. 658(9), 69 So. 102.
The motion for a new trial was also grounded on the giving of this erroneous instruction and the order granting it might be well sustained on this basis. If such action is sustainable on this, another, proper ground, we are not limited in our review to that assigned in the ruling (Sullivan v. Alabama Power Co., 246 Ala. 262(14), 20 So.2d 224; Louisville N. R. Co. v. Scott, 232 Ala. 284, 290(20), 167 So. 572; Mills Lumber Co. v. Hull, 222 Ala. 229, 131 So. 902), and it is open to appellee to show error in any other ground assigned in the motion. Thomas v. Carter, 218 Ala. 55, 59(7), 117 So. 634.
The judgment must be affirmed.
Affirmed.
All the Justices concur.