Opinion
8 Div. 614.
December 20, 1923. Rehearing Denied January 24, 1924.
Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.
Tillman, Bradley Baldwin, of Birmingham, and Eyster Eyster, of Albany, for appellant.
The failure of the plaintiff to turn out of the road amounted to an act of negligence, which ought to defeat his recovery. Acts 1911, p. 642, § 20; Crescent Motor Co. v. Stone, 208 Ala. 137, 94 So. 81; Morrison v. Clark, 196 Ala. 670, 72 So. 305; 29 Cyc. 516; Gov. St. Lbr. Co. v. Ollinger, 18 Ala. App. 518, 94 So. 180. Defendant should have been permitted to show plaintiff was an opium habitue, in order to proceed further and show mental impairment by such use. Eldridge v. State, 27 Fla. 162, 9 So. 448; State v. Gleim, 17 Mont. 17, 41 P. 998, 31 L.R.A. 294, 52 Am. St. Rep. 663.
S. A. Lynne, of Decatur, for appellee.
It was the duty of the defendant's driver to exercise reasonable care to avoid injury to others lawfully using the same highway. Overton v. Bush, 2 Ala. App. 623, 56 So. 852. The mere fact that plaintiff pursued a straight course in the road did not constitute contributory negligence. Berry on Automobiles, §§ 835, 839; Wollaston v. Park, 47 Pa. Super. 90; Morrison v. Clark, 196 Ala. 670, 72 So. 305. If the truck driver had not room to pass plaintiff, it was his duty to stop. Savoy v. McLeod, 111 Me. 234, 88 A. 721, 48 L.R.A. (N.S.) 973. There was no error in sustaining objections to questions seeking to show plaintiff used opium. Eldridge v. State, 27 Fla. 162, 9 So. 449; State v. King, 88 Minn. 175, 92 N.W. 965.
This case was submitted to the jury on count 1 of the complaint. There was no error in sustaining the plaintiff's demurrer to defendant's special pleas 2, 3, and 4. If not otherwise bad, they fail to aver or show, except perhaps by way of conclusion, that there was any necessity for the plaintiff to have borne to the right in order for the defendant's motor truck to pass. From aught appearing, the plaintiff was already on the right of the road, or if in or near the center there was ample space for the defendant's truck to pass.
Act 1911, p. 642, § 20, provides that —
"Any person so operating a motor vehicle shall, on overtaking any such horse, draft animal or other vehicle pass on the left side thereof and the rider or driver of such horse, draft animal or other vehicle shall, as soon as practicable, turn to the right so as to allow free passage on the left."
This, of course, only requires the rider or driver to give the approaching motor vehicle ample room to pass and to bear to the right only when it is necessary for the approaching motor vehicle to pass. We do not mean to hold, however, that, if the driver or rider failed to turn to the right when necessary, this would under any and all circumstances justify the approaching motor vehicle operator in running into him.
The trial court committed no reversible error in permitting Dr. Greer to testify as to the nature and character of the plaintiff's injuries when he examined him, as the plaintiff subsequently connected the examination with the injury by testifying that he went to the said doctor the day following the injury; and as to intervening circumstances, and as to whether or not the injuries as examined by the doctor were produced by the collision, was a question for the jury.
The use of opium cannot be introduced to impair the credit of a witness unless it be shown that he was under the influence of the drug at the time of testifying or at the time of the occurrence of the event to which he is testifying, or that his mind was generally impaired by the use of said drug. State v. Gleim, 17 Mont. 17, 41 P. 998, 31 L.R.A. 294, 52 Am. St. Rep. 663; Eldridge v. State, 27 Fla. 162, 9 So. 449. The question to Dr. Greer, as to whether or not plaintiff had not for many years prior to the injury and subsequent thereto been an "opium habitue," did not show that he was under the influence of the drug at the time of the injury or at the time of testifying. Nor did it show that the habit was so excessive as to have impaired the memory of the plaintiff. True, it was essential to prove the habitual use of opium as a predicate to establish the extent of same, but in order to put the trial court in error the question should have been followed up by a statement or assurance that defendant expected to show that the habit was so excessive as to impair the memory of the plaintiff.
There was no error in permitting the plaintiff to testify that he did not know the truck was behind him.
There was no error in permitting the witness Rogers, in rebuttal, to testify as to the condition of the wagon when he saw it shortly after the collision. There was a sharp conflict between the testimony of the plaintiff and defendant's agent, Shelton, as to how the wagon was struck, the injury to the wheels, and whether or not plaintiff was thrown or fell out of the wagon at the time, and the condition of the wagon was a circumstance tending to corroborate one and contradict the other.
There was no error in refusing defendant's requested charges 12, 14, 15, 16, and 9. If not otherwise faulty, they invoke negligence on the part of the plaintiff that was not pleaded. Moreover, charge 9 was substantially covered by defendant's given charge 8.
We are not prepared to say that the trial court erred in refusing the motion for a new trial. There was ample evidence tending to show that the collision resulted from the negligence of defendant's agent, Shelton. Indeed, his own evidence shows that plaintiff's wagon was far enough to the right to give him ample space to pass, and that the collision would not have occurred but for the fact that he selected the particular time to do so when an approaching vehicle got opposite the plaintiff's wagon and sought to go between the two. True, there was a sharp conflict between the witnesses as to whether or not the plaintiff was knocked off and injured as he claimed or the collision was slight and inflicted no hurt or injury to him. The jury, however, saw and heard the witnesses and we cannot say that their finding as to this issue was so contrary to the great weight of the evidence as to put the trial court in error for refusing a new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
The judgment of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.