Opinion
6 Div. 991.
April 12, 1928. Rehearing Denied May 31, 1928.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
Stokely, Scrivner, Dominick Smith, of Birmingham, for appellant.
Where the testimony leaves a material matter leading to liability so uncertain as between causes for which defendant might be responsible and causes for which defendant could not be held accountable, it is not for the jury to guess. Golson v. W. F. Covington Mfg. Co., 205 Ala. 226, 87 So. 439; American Cast Iron Pipe Co. v. Landrum, 183 Ala. 132, 62 So. 757; Carlisle v. C. of Ga. Ry. Co., 183 Ala. 195, 62 So. 759. Causal connection between defective brakes and the collision must be shown. Liability for collision of automobile may not be found on evidence alone of defective brakes, but there must be evidence of causal connection with the accident. Hattiesburg Chero-Cola Bottling Co. v. Price, 141 Miss. 892, 106 So. 771; 38 C. J. 95. While automobiles are not inherently regarded as dangerous instrumentalities, and the owner thereof is not responsible for the negligent use of same, except on the theory of the doctrine of respondeat superior, yet there is an exception if he intrusts it to one, though not an agent or servant, who is so incompetent as to the handling of same as to convert it into a dangerous instrumentality and the incompetence is known to the owner when permitting the use of a vehicle. Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L.R.A. 1917F, 380; Beville v. Taylor, 202 Ala. 305, 80 So. 370; Rush v. McDonnell, 214 Ala. 47, 106 So. 175.
Altman, Taylor Koenig, of Birmingham, for appellee.
One who for hire lets an automobile to be operated upon public highways is bound to use ordinary care to see that the brakes are in reasonably safe condition to prevent injury to other persons lawfully using the highway. Collette v. Page, 44 R.I. 26, 114 A. 136, 18 A.L.R. 74; 28 C. J. 93. Every motor vehicle operated or driven upon public highways of this state shall be provided with adequate brakes in good working order and sufficient to control such vehicle at all times when same is in use. Code 1923, § 6264. In a complaint, very general averments, little short of mere conclusions, of a want of care and consequent injury, leaving out the facts which constitute and go to prove negligence, meet all the requirements of the law. Shelby Iron Co. v. Morrow, 209 Ala. 116, 95 So. 370. Where there is evidence or inferences therefrom to support plaintiff's cause of action, the question is for the jury, and the general affirmative charge is properly refused the defendant; the weight of evidence being for the jury. So. States Fire Ins. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63; Allen v. Fincher, 187 Ala. 599, 65 So. 946. A charge which assumes facts which must appear from the evidence is bad. Going v. Ala. Steel Wire Co., 141 Ala. 537, 37 So. 784; Marbury Lbr. Co. v. Lamont, 169 Ala. 33, 53 So. 773; Randall's Instructions to Juries, vol. 1, § 74, p. 127.
Defendant, Saunders System, let an automobile for hire to Bertie Green as "driver." The machine, while being operated by the driver, ran against plaintiff, Adams, causing injuries on account of which she brought this suit, alleging — in count D on which alone the case went to the jury — that defendant had negligently rented the car to the driver "with the brakes of said car in a defective and dangerous condition," as a proximate consequence whereof she suffered injuries described in the complaint. Numerous grounds of demurrer were assigned to this count, and some of them are repeated in the assignments of error and in appellant's brief. Those requiring notice are to the effect, briefly stated, that no privity of contract between plaintiff and defendant was shown; that there was no averment that defendant knew or could have known, the defective condition of the brakes; that an automobile is not an "immediately dangerous vehicle"; that there is no sufficient allegation of negligence; that proximate causal connection between the negligence alleged and plaintiff's injury is not shown.
The question involved relates to the alleged negligence of one who rented or let to hire an automobile, to the driver who was operating the machine at the time of plaintiff's injury. In Parker v. Wilson, 179 Ala. 370, 60 So. 150, 43 L.R.A. (N.S.) 87, we stated our opinion that automobiles are not to be classed with such highly dangerous agencies as dynamite or savage animals; that they are not dangerous per se. That opinion has expressly or by necessary implication been approved in the more recent cases of Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L.R.A. 1917F, 380, and Beville v. Taylor, 202 Ala. 305, 80 So. 370. Of course the court in those cases was speaking of automobiles properly constructed and in good repair. The question now is whether the defendant owed the duty of care and diligence in and about the condition of the machine, to any one but the driver, that is, to plaintiff in this case. In view of the fact that the automobile was let for use on the streets and highways of the neighborhood, and that a machine of that sort without brakes or with defective and inefficient brakes, when used in the highways (including the public streets of Birmingham), is a dire menace to every one who may come into its close vicinity, we have no difficulty in reaching the conclusion that one who lets an automobile for hire with knowledge or notice that it will be used upon the public highways, thus involving probable danger to others than the driver, is under duty to inspect the machine to the end that such danger may not arise. Every one of good sense and having proper regard for his fellows must foresee the danger and, foreseeing, must take reasonable precaution against it. There is no intention to suggest that a person engaged in defendant's business becomes a guarantor of the absolute integrity of the machines he lets. We intend only to hold that he must exercise reasonable diligence to know the condition of his machines before letting them into the hands of drivers for use on the highways. He must in that regard exercise such simple and available tests as the intended use would suggest to sensible and right-minded persons — the jury being at last the judges.
The duty of diligence arises, not entirely out of contract, but out of obligations imposed by law on every one in his dealings with his fellows. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, Ann. Cas. 1916C, 440, L.R.A. 1916F, 696; Collette v. Page, 44 R.I. 26, 114 A. 136, 18 A.L.R. 74; Johnson v. Bullard, 95 Conn. 251, 111 A. 70, 12 A.L.R. 766; 38 C. J. p. 93, § 70. And this is in agreement with the legislative policy of this state as shown by section 6264, of the Code, where it is provided that "Every motor vehicle, operated or driven upon the public highways of this state shall be provided with adequate brakes in good working order and sufficient to control such vehicle at all times when the same is in use."
These considerations, in connection with our rule of pleading according to which only the most general allegations of negligence "little short indeed of mere conclusions," are required (Armstrong v. Montgomery Street Railway, 123 Ala. 233, 26 So. 349; Shelby Iron Co. v. Morrow, 211 Ala. 125, 99 So. 643), suffice to answer appellant's criticism of the trial court's ruling on the demurrer to the complaint.
One other point, taken in appellant's brief, viz.: That the count in issue failed to allege that the defective and dangerous condition of the brakes proximately caused plaintiff's injuries, is answered by the plain language of the count, which alleges that plaintiff was injured as a proximate consequence of defendant's negligence.
The inquiry of fact whether the brakes of the car causing plaintiff's injuries were defective at and before the time of the accident, depended upon evidence in irreconcilable conflict and it is not possible for the court on the case shown in the bill of exceptions to say that there was any preponderance on the side of plaintiff. There was evidence tending to show that plaintiff's hurt was caused, not by reason of any defect in the brakes, but because the driver of the automobile, going at a high rate of speed across a crowded crossing, failed to make any use, or any attempted use, of the brakes with which the car was equipped. If the jury found in agreement with this tendency of defendant's evidence, then defendant was entitled to have the law as stated in the 7th and 9th charges refused to it. The evidence for defendant tended to sustain the hypotheses of these charges and they assert correct propositions of law. Nor was there anything like a clear statement of the proposition of either of these charges in the other instructions given by the court. In view of well-defined tendencies of the evidence, defendant was entitled to statements of this character, and we find no sufficient reason why they should not have been given.
It is said that charge 7 assumes that Bertie Green (the driver) was driving the car at a rapid rate of speed. Bertie's testimony in connection with the ordinance of the city of Birmingham — of which the court is by statute required to take cognizance — would warrant such an assumption, but on a fair interpretation the instruction is not guilty as alleged. Burgin v. Stewart, 216 Ala. 663, 114 So. 182, 184.
The charge made the subject of the 30th assignment was refused without error. The charge limits the duty of inspection, or to be informed, to the agent or servant who rented the machine to the driver, whereas that duty rested upon the defendant corporation.
Reversed and remanded.
ANDERSON, C. J., and BOULDIN, J., concur.
BROWN, J., concurs in the reversal on the 9th charge.