1 Div. 442.
April 21, 1927.
Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.
Smiths, Young Johnston, of Mobile, for appellant.
Defendant's plea sets out a valid defense, showing facts which would impose upon plaintiff's driver the duty to keep a lookout for automobiles entering Springhill avenue from Lanier avenue. Barbour v. Shebor, 177 Ala. 304, 58 So. 276; Adler v. Martin, 179 Ala. 97, 59 So. 597; Southern Ex. Co. v. Roseman, 206 Ala. 681, 91 So. 612. The rule or regulation of Mobile county is unreasonable and void, being in conflict with section 6266 of the Code of 1923. The south side of Springhill avenue is a public highway, and the defendant had the right to travel westwardly on said highway. Ray v. Brannan, 196 Ala. 113, 72 So. 16; Morrison v. Clark, 196 Ala. 670, 72 So. 305.
A. S. Whiting and R. H. McConnell, both of Mobile, for appellee.
Defendant's plea 3 was ambiguous. It presented no case on contributory negligence on which issue could be joined. Karpeles v. City Ice Del. Co., 198 Ala. 449, 73 So. 642; Ind. St. R. Co. v. Hoffman, 40 Ind. App. 508, 82 N.E. 543. Rule 4 of the board of revenue of Mobile county is a valid rule or regulation. Code 1923, §§ 1348, 1374, 6266, 6269; Oliver v. State, 16 Ala. App. 533, 79 So. 313; Isbell v. State, 17 Ala. App. 465, 86 So. 169; Posey v. State, 17 Ala. App. 448, 86 So. 117.
Plea 2 as amended, to which demurrer was sustained, was no answer to count 3 setting up the violation of the rule of the road. And this justified the ruling of the trial court. Moreover, the plea was ambiguous in the use of the words, "collide with said automobile." If defendant's truck was referred to in the plea, as insisted in argument of the appellee, the averment is insufficient — the fact stated failed to show notice or knowledge of the plaintiff of the whereabouts of "said" defendant's car or truck.
The plea was insufficient as an answer to the other counts. One having the right of use to double driveway streets may assume that the other so using the thoroughfare will observe the law of the road at such time and place and under the circumstances presented. That is to say, proceeding as plaintiff is averred to have approached the point of collision on a paved street or hard-surfaced road, he may act upon the assumption that others crossing or approaching thereon will observe the rule of the road, and is not guilty of contributory negligence, in the first instance, in acting on that assumption; no facts being averred to show that he was sufficiently apprised of the fact that the other would not observe the law.
The general duty of due care under the circumstances was all that was required of the plaintiff. Shafer v. Myers (Ala. Sup.) 112 So. 230; Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642. That is to say, plaintiff's conduct is to be judged under the "certain circumstances" of the time and place and the rules of the road binding on all traversing the public thoroughfare where the collision occurred. The plea sought to place upon the plaintiff a higher duty of a special lookout for cars entering Springhill avenue from the south and from Lanier avenue. The facts averred in the plea do not sufficiently show the duty on plaintiff to keep the lookout indicated for cars approaching from Lanier into Springhill avenue; it is subject to the fifth ground of demurrer. Barbour v. Shebor, 177 Ala. 304, 58 So. 276; Adler v. Martin, 179 Ala. 97, 59 So. 597; So. Express Co. v. Roseman, 206 Ala. 681, 91 So. 612.
Affirmative instruction was requested as to count 3, and objection made to the introduction in evidence of ordinance No. 4 on the theory or ground that the ordinance was unreasonable and void and in conflict with the general law stated in section 6266 of the Code of 1923, and rulings thereon are urged as error. We do not understand that the ordinance is in conflict with the general law, or that its provisions are unreasonable. The rules of the road, so stated in the general law, were subject to the imposition of reasonable ordinances or traffic regulations by municipalities. The express provisions therefor were:
"At intersections of public highways, the vehicle approaching on the right of the other vehicle shall have the right of way, but this shall not prevent municipalities from adopting ordinances for the regulation of traffic within their boundaries; and vehicles traveling on trunk roads established under the laws of Alabama shall have the right of way."
See, also, sections 1347, 1348, and 1350.
In Adler v. Martin, 179 Ala. 97, 117, 59 So. 597, 603, after discussing many authorities, including Barbour v. Shebor, 177 Ala. 304, 58 So. 276, it was said of the duty of a pedestrian crossing a street:
"He must use due care to avoid collisions with them; but what is due care in this regard will depend upon the character of the street, the extent of its use by vehicles, the kind of vehicles that frequent it, and upon the locus of the attempted crossing, i. e., whether it is at a regular and general crossing, or at a point not generally so used, or, as in the present case, at a point where there is no occasion at all for crossing, and crossing is very infrequent. Other considerations, also, may obviously increase or diminish the hazards of inattention. Due care is relative always.
* * * * * * * *
"In Barbour v. Shebor, supra, where plaintiff was injured by an automobile while crossing the street, it was held by a divided court that a plea setting up as a defense that plaintiff 'negligently attempted to cross said street without looking for said automobile, which was then and there approaching in rapid motion on said street, and was struck by said automobile and injured, although he knew that automobiles were likely to pass on said street at any moment,' was insufficient on demurrer. It will suffice for present purposes to say that a pedestrian's failure to look for any particular automobile cannot be characterized as negligent, unless he knew it was approaching in such proximity as might render his inattention a menace to his safety. And so 'negligently attempting to cross the street,' without looking generally for a particular car, is not the equivalent of a negligent failure to look up or down the street in the direction from which the car might be approaching."
The last observation illustrates the defect of said plea and justifies the sustaining of demurrer thereto.
There was no error in refusing the charge made the subject of the sixth assignment of error. It was abstract and misleading under the evidence. The highway was a double highway. The law required driving to the right of the center of the street. The evidence and map show that defendant's driver crossed diagonally across to the left of the center of the crossing; that, under the stress of the moment, defendant's driver "cut the corner" at the crossing in his effort to proceed to Crichton. And the charge was therefore confusing. This act of defendant's driver caused plaintiff to do the obvious thing to avoid collision — turned out of the way to the north.
We find no reversible error, and the judgment is affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.