Opinion
8 Div. 451.
October 5, 1933.
Appeal from Circuit Court, Jackson County; A. E. Hawkins, Judge.
Action under homicide statute by Rena Coffey, as administratrix of the estate of R. A. Coffey, deceased, against J. A. Proctor. From a judgment granting plaintiff's motion for a new trial, defendant appeals.
Affirmed.
Defendant's special pleas charge plaintiff's intestate with contributory negligence, and thus, in effect, allege the circumstances and conditions under which he was traveling:
Intestate, the defendant, and three other parties left Scottsboro on the afternoon of the date of the injury and traveled in defendant's car to Sewanee, Tenn., a distance of several miles, to attend a football game. After the game, the same parties were returning to Scottsboro in defendant's car, when the accident occurred, on a public highway, approximately two and one-half miles east of Scottsboro. Intestate occupied a position in the car on the rear seat on the right-hand side. Defendant was driving and operating the car, and had so driven and operated it since the time they left Sewanee. At the time of the collision, about 7 or 7:30 p. m., it was dark and, for a distance of several miles before reaching the point where the injury occurred, defendant was driving the car in the nighttime when it was lightning and raining, the rain falling on the windshield of the car, and had been for several miles before reaching the point of the accident, "all of which facts were well known to plaintiff's intestate at and for a long time prior to his injury." It is alleged (plea 2) that the negligent act attributable to defendant in the complaint was known to intestate at and for several miles distance prior to the place of his injury, and the danger of so operating said car was also known and appreciated by intestate, but said intestate continued as an occupant in said car and negligently failed to protest or object to the alleged negligent conduct of defendant, and as a proximate consequence was injured.
Other pleas set up that defendant was driving in the nighttime, through rain, at an excessive speed, on a graveled road, which facts were known by intestate, and had been known for some time prior to the accident; that intestate appreciated the danger of so driving the car under such conditions, had ample opportunity to have protested and remonstrated with defendant, but negligently failed to do so.
These charges were given at defendant's request:
"13. I charge you gentlemen of the jury that contributory negligence of the intestate in his failure to protest against the high rate of speed of the car, is imputed to him because of an opportunity to know the dangerous rate of speed, if you are reasonably satisfied from the evidence that the car was being negligently operated under the circumstances at and for a mile prior to the point of the wreck at a high and dangerous rate of speed, and if you are further reasonably satisfied that intestate failed to protest or object to the rate of speed at which said car was being driven.
"14. I charge you gentlemen of the jury, that it is the duty of an invited guest riding in an automobile driven at an excessive and dangerous rate of speed, to exercise such care as a reasonable and prudent man would exercise, to avoid injury to himself, and that if he fails to warn the driver, remonstrate with him or demand that the automobile be stopped so that he may leave it or take any precaution, when the car is being negligently operated by the driver and which fact is known to occupant when there is time and opportunity to do so, no recovery can be had for injuries sustained by him through the negligent operation of the car.
"15. I charge you gentlemen of the jury, although you are reasonably satisfied from the evidence that the defendant was driving his automobile at an excessive rate of speed for a mile before and at the happening of the wreck, yet if you are further reasonably satisfied from all the evidence that intestate was riding in the car and did not object to or protest against the rate of speed at which the automobile was being driven, and that intestate had knowledge of the speed at which it was being driven, and the circumstances under which it was being driven at said rate of speed, and by intestate's failure to so object or protest, he acquiesced in the speed at which the automobile was being driven at the time and place and under the circumstances and the excessive speed of the automobile just before and at the time of the wreck, and that the speed of said car, under the circumstances, contributed to his injury, then I charge you that he was negligent in not protesting or objecting to the speed at which the car was being driven under the circumstances and conditions.
"16. I charge you gentlemen of the jury, that if you are reasonably satisfied from the evidence that deceased, R. A. Coffey, was a man in the possession of all his faculties and that at the time of the wreck complained of and was in a car driven by defendant at a dangerously high rate of speed, and that he had been riding in said automobile for a sufficient time and distance prior to the wreck for him to become aware that said automobile was being driven at a high and dangerous rate of speed, and if you further find that R. A. Coffey made no protest to the defendant against the high rate of speed of the automobile, and did not request the defendant to stop or slow down the car, then I charge you that R. A. Coffey was guilty of negligence."
Eyster Eyster, of Decatur, for appellant.
The proximate cause of the wreck was loose gravel in the road, and the fact that defendant did not see it was not an act of negligence on his part. Under the undisputed evidence there was no negligence on the part of defendant, and the judgment awarding a new trial cannot be sustained on the ground that the verdict was against the weight of the evidence. Morgan Hill Paving Co. v. Fonville, 218 Ala. 576, 119 So. 610; Berry v. Dannelly, 226 Ala. 151, 145 So. 663, 665; Baker v. Elebash, 220 Ala. 198, 124 So. 739; McDermott v. Sibert, 218 Ala. 672, 119 So. 681. Defendant's pleas were in the nature of confession and avoidance of negligence charged in the various counts, and did not present a question of imputing the alleged negligence of defendant to plaintiff, but charged intestate with being guilty of independent act of negligence, sufficient to bar a recovery in the cause. Morgan Hill Paving Co. v. Fonville, supra; McDermott v. Sibert, supra; Dickson v. Dinsmore, 219 Ala. 356, 122 So. 437; Birmingham Ry., L. P. Co. v. Barranco, 203 Ala. 642, 84 So. 839; McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508. In view of the pleadings and the evidence, charge 13 is a correct charge. The law imposed the duty on the intestate, because of the fact of the operation of the car at the time and place under the circumstances and conditions, suggested to one of ordinary care a necessity to keep watch and to exercise due care for his own safety under the circumstances and conditions. McDermott v. Sibert, supra; Dickson v. Dinsmore, supra; Baker v. Baker, 220 Ala. 204, 124 So. 740. As to necessity of an averment of knowledge of danger by intestate, the duty imposed upon a guest is created by either known dangers or perils that the attendant circumstances reasonably suggest or foreshadow. Birmingham Ry., L. P. Co. v. Barranco, supra; Walker County v. Davis, 221 Ala. 195, 128 So. 144; 40 A.L.R. 1343, note; McGeever v. O'Byrne, supra; Morgan Hill Paving Co. v. Fonville, supra. The purpose of the charge was to state a legal proposition of what would constitute contributory negligence and not to specifically charge intestate with contributory negligence. Sharp v. Sproat, 111 Kan. 735, 208 P. 613, 26 A.L.R. 1424; 26 A.L.R. 1428, note. Other charges are simply general statements of the law as set out in the authorities above cited.
Proctor Snodgrass, of Scottsboro, for appellee.
The action of the lower court in granting new trial on ground that the verdict was contrary to the evidence will not be reviewed in absence of abuse of the court's discretion. Ex parte Landers, 214 Ala. 20, 106 So. 225; Goad v. Harris, 207 Ala. 357, 92 So. 546; Acuff v. Lowe, 211 Ala. 394, 100 So. 761; Conner v. Central of G. R. Co., 221 Ala. 358, 128 So. 789; Cook v. Sheffield Co., 206 Ala. 625, 91 So. 473; Birmingham News Co. v. Lester, 222 Ala. 503, 133 So. 270; City of Birmingham v. Maggio, 24 Ala. App. 107, 131 So. 446. Contributory negligence is not imputed to an invited guest because of mere opportunity to know danger. Charge 13 was erroneously given. It assumes that contributory negligence is a matter of law and not a question of fact for the jury. McDermott v. Sibert, 218 Ala. 671, 119 So. 681. Charge 14 omits the requirement that such contributory negligence must have been the proximate cause of the injury. Southern R. Co. v. Jones, 143 Ala. 328, 39 So. 118. Charge 16 is subject to the same criticism as to charges 13 and 14. Baker v. Baker, supra; Southern R. Co. v. Jones, supra; Birmingham Southern R. Co. v. Harrison, 203 Ala. 284, 82 So. 534. Defendant's pleas failed to aver that plaintiff's intestate and defendant were engaged in a joint adventure. Newell Contracting Co. v. Berry, 223 Ala. 109, 134 So. 870. They were subject to the demurrer raising the point that intestate had no control or management over the operation of the car. Cresent Motor Co. v. Stone, 211 Ala. 516, 101 So. 49; Morgan Hill Paving Co. v. Fonville, 218 Ala. 578, 119 So. 610; Birmingham-Tuscaloosa Ry. Utilities Co. v. Carpenter, 194 Ala. 141, 69 So. 626.
This is an appeal from a judgment setting aside a verdict and judgment in favor of defendant, in a suit under the homicide statute (Code 1923, § 5696). Plaintiff's intestate was riding on the back seat of the car at the invitation of defendant. That situation required of defendant an exercise of ordinary care not to injure him. The counts separately charged negligent injury and willful and wanton injury, causing death.
There were pleas of contributory negligence for the failure to protest after knowledge of the negligent and dangerous operation of the car. They were held good as to the simple negligence count and bad as to the willful or wanton count.
The evidence tended to show negligence of defendant, or even wantonness as an inference from the facts, and also the contributory negligence of plaintiff's intestate.
The court assigned no ground as that on which it acted in granting the motion. One ground was that the verdict was contrary to the great weight of the evidence. The ruling might have been based on that ground. We do not wish to say that, as an original proposition such would be our ruling as to the evidence, but we cannot reverse the judgment on such a ruling unless we think that it was clearly wrong. We cannot here so affirm. A discussion of the evidence would not be appropriate. The judgment of the court in that respect cannot therefore be reversed. But since thereby another trial is called for, we think that for that purpose we should pass upon those other grounds of the motion which show questions likely to arise on another trial.
The insistence of appellee that the pleas must show a joint adventure between plaintiff's intestate and defendant in order that they shall constitute a good defense mistakes the principle that it is only when it is sought to impute to the passenger the negligence of the driver in respect to a duty to some third person and not to the passenger himself that the relation of joint adventurers is material. That was the situation in Newell Contracting Co. v. Berry, 223 Ala. 109, 134 So. 870; Id., 223 Ala. 111, 134 So. 868; Crescent Motor Co. v. Stone, 211 Ala. 516, 101 So. 49; Birmingham R., L. P. Co. v. Barranco, 203 Ala. 641, 84 So. 839; Birmingham-Tuscaloosa R. U. Co. v. Carpenter, 194 Ala. 141, 69 So. 626.
But it has also been explained that such relation is immaterial when one adventurer sues the other for his negligent injury. Whiddon v. Malone, 220 Ala. 220, 124 So. 516; Baker v. Baker, 220 Ala. 201, 124 So. 740.
The gravamen of the pleas is the negligent failure of the passenger guest to observe due care for his own safety as against a known and appreciated or anticipated danger, and it is not dependent upon the existence of control by him in any respect of the operation of the car. It is the duty to the defendant, and not to a third person which the pleas set up, as described in our cases of McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; McDermott v. Sibert, 218 Ala. 670, 119 So. 681.
We do not think that the grounds of demurrer to the special pleas point out a material defect in them.
Given charge 13 assumes that the failure to protest was due to a disregard of duty, rather than to some other cause. It shows facts from which an opportunity and duty to protest would ordinarily be inferred, but not necessarily so. There must be a negligent or willful failure to protest, having an opportunity to do so. The jury is also left without being thereby instructed as to the meaning of negligence to determine if the car was negligently operated by defendant. For such reasons, however, we would not affirm that it was reversible error to give this charge.
But it is insisted that no duty is imposed upon the guest because of an opportunity to know of the dangerous speed, without the averment of a knowledge of it, and in the absence of circumstances alleged which suggest to one of ordinary care a necessity to keep watch. The question presented is important. Two material circumstances, one of which is ordinarily averred, are both omitted, viz.: (1) That the guest has abandoned his own faculties and trusts entirely to the care and vigilance of the driver (McDermott v. Sibert, supra); or (2) that the guest actually observed the dangerous speed, or that the circumstances demanded his watchful attention to observe it, though he may not have been conscious of the danger (Dickson v. Dinsmore, 219 Ala. 353, 356, 122 So. 437; Walker County v. Davis, 221 Ala. 195, 128 So. 144).
We do not think that the authorities support the claim that a mere opportunity to know the danger is sufficient in the absence of facts suggesting to the guest as a person of ordinary care a necessity to keep a watch. That is what was held in the case of Baker v. Baker, supra. So, in the case of B. R. L. P. Co. v. Barranco, supra, the duty of the guest is said to arise when he should anticipate that the driver of the vehicle will enter the sphere of danger or omit to exercise due care, not when he has the opportunity to so anticipate without anything to direct his attention to such condition. This principle is also mentioned in McGeever v. O'Byrne, supra; Dwight Mfg. Co. v. Word, 200 Ala. 221 (14), 75 So. 979.
The charge should have been refused on that ground. It also improperly assumes that there was an opportunity to know the dangerous rate of speed. And, while it does not state what are the consequences of contributory negligence, the jury could be misled by it to the opinion that it would defeat the action, though it did not proximately contribute to the accident. But the particular aspect of the charge which stamps the giving of it with error, inherently sufficient to justify the granting of the motion for a new trial, is the fact that it is based upon the averment of a duty merely because of an opportunity to know the dangerous speed, since for some reason or other not due to negligence, such speed may not have been observed by the guest, though it had continued for a mile prior to the accident. The guest may not have known of any reason to be watchful, and may not have been, but may have concentrated on other matters.
Moreover, since the charge was misleading, if the trial court in its discretion found that by reason of such tendency a new trial should have been granted, his act in that respect will be reviewed with the same presumption as is usual in the exercise of such power. Montgomery L. T. Co. v. Riverside Co., 188 Ala. 380, 66 So. 459.
Charges Nos. 14, 15, and that unnumbered, which is the basis of the eighth assignment, which we will number 16, undertake to define contributory negligence. Though there may be no fault in this respect, not now considered, and though some of them do not direct the jury what the effect of contributory negligence should have on their verdict, they should not be given except with the averment that the negligence of the guest was a proximate contributing cause of the accident. It may have spent its force, the negligence of defendant subsided without protest, and have suddenly been resumed (in so far as charge 14 is concerned), or was otherwise not a proximate contributing cause (charges 15 and 16). We would not say that the giving of them was reversible error; but they could well have been refused without error.
We do not think the judgment of the court granting the motion for a new trial should be reversed.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.