In Mobile Light R. Co. v. Logan, 213 Ala. 672, 106 So. 147, the issues embraced simple initial negligence, and also simple subsequent negligence, and it was for this reason that charge 4 in that case was properly refused.Summary of this case from Johnson v. Louisville N. R. Co.
1 Div. 382.
November 5, 1925.
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Harry T. Smith Caffey, of Mobile, for appellant.
There being a total absence of any evidence of a wanton or willful act, or of subsequent negligence, on the part of the motorman, defendant was entitled to the affirmative charge. Warden v. L. N., 94 Ala. 277, 10 So. 276, 14 L.R.A. 552; Woodward Iron Co. v. Jones, 80 Ala. 128; Shirley v. Sou. Ry., 198 Ala. 103, 73 So. 430; L. N. R. Co. v. Calvert, 172 Ala. 602, 55 So. 812. Charge 4 asserts a correct principle and should have been given. Merrill v. Sheffield Co., 169 Ala. 242, 53 So. 219. Charge 9 correctly states the law and should have been given. Stanford v. St. L. S. F., 163 Ala. 210, 50 So. 110; A. G. S. v. McWhorter, 156 Ala. 276, 47 So. 84; L. N. v. Young, 153 Ala. 235, 45 So. 238, 16 L.R.A. (N.S.) 301. A motorman in charge of a street car, seeing an automobile on the track approaching from the opposite direction, has the right to presume that it will leave the track in time to avoid collision. Frazer v. S. N. A., 81 Ala. 186, 1 So. 85; Sou. Ry. v. Gullatt, 150 Ala. 320, 43 So. 577. To overcome the effect of contributory negligence, it was necessary to show that the motorman, not only saw the situation, but realized the danger. B. R., L. P. Co. v. Jaffee, 154 Ala. 548, 45 So. 469; B. R., L. P. Co. v. Cockrum, 179 Ala. 372, 60 So. 304; L. N. v. Calvert, 170 Ala. 572, 54 So. 184; Daniel v. Carney, 148 Ala. 81, 42 So. 452, 7 L.R.A. (N.S.) 20, 121 Am. St. Rep. 34, 12 Ann. Cas. 612; Sou. Ry. v. Bush, 122 Ala. 470, 26 So. 168.
Outlaw Kilborn, of Mobile, for appellee.
Charge 2, requested for defendant, was properly refused. M. L. R. Co. v. Gadik, 211 Ala. 582, 100 So. 837. Likewise charge 9. B. R., L. P. Co. v. Fisher, 173 Ala. 623, 55 So. 995; Adams v. Crimm, 177 Ala. 279, 58 So. 442; L. N. v. Mertz, 149 Ala. 561, 43 So. 7. Replication 2 is sufficient. M. L. R. Co. v. Gadik, supra; Hurt v. Sou. Ry., 205 Ala. 179, 87 So. 533.
Plaintiff Logan recovered judgment for personal injuries sustained by him in a collision between a Ford coupé he was driving and a street car operated by the defendant. Defendant requested the general affirmative charge and made a motion for a new trial. Both request and motion were ruled against defendant and now, upon consideration of the evidence, it is urged that these rulings were affected by error.
The evidence was in conflict, and, probably, if we were considering it in the first instance, we would think the weight of it was on the side of defendant; but, if plaintiff's version of the occurrence may be accepted as substantially correct in all material respects, the result, under the firmly and properly settled rules of this court in such matters, must be allowed to stand as against these two assignments of error. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
Charge 2, requested by defendant, was properly refused. This charge was framed in the language of defendant's plea of plaintiff's contributory negligence. The issue thus raised, with correct conclusion in the event of a finding in agreement with defendant's contention, was accurately stated to the jury in the court's oral charge; but the court added that the issue made by plaintiff's replication, alleging the negligence of defendant's motorman subsequent to his discovery of plaintiff's peril, would need to be considered in the same connection. In this the court was right; and the special charge under consideration was correctly refused because it ignored the issue of subsequent negligence raised by the pleading in this case — though special pleading to the effect was not necessary — and sustained by clear tendencies of the evidence. Mobile Light R. R. Co. v. Gadik, 211 Ala. 582, 100 So. 837.
Charge 3, requested by defendant, was not accurately phrased to instruct the jury in that it required of plaintiff that, in the circumstances stated, he should have "looked straight ahead at defendant's track." Plaintiff was under necessity to observe not only defendant's "track" — conceding, for the argument, that the charge meant defendant's approaching street car — but the actual or probable movement of other vehicles in the street. But aside from that, the statement of the issues of law and fact shown by this charge was fairly covered by the court's oral instruction to the jury, and with perhaps undue favor to defendant, in written charge 14, given at its request.
There was no error in refusing charge 4 requested by defendant. Whether defendant's motorman should have sounded an alarm was, in the circumstances, a question for the jury, not the court. The purpose of such alarm would have been to inform plaintiff of the approach of the street car. To have waited until the motorman realized that plaintiff was not aware of such approach might very well have deprived an alarm of its utility; hence the propriety of submitting the requirement of due care in this regard to the jury in the circumstances of this case.
Defendant's charge 9 ignored the issue of subsequent negligence on the part of defendant's motorman, and hence was refused without error. Mobile Light R. R. Co. v. Gadik, supra.
Defendant's charge 11, as reported in the transcript, was somewhat confused, and its possible service in the way of instructing the jury was more clearly performed by charge 14, given at defendant's request, and there was no error in its refusal.
Charge 12 was also covered by given charge 14, and, as we said when considering defendant's requested charge 3, charge 14 stated the relevant principle of law in a form rather more favorable to defendant than was its due. So also in reference to charge 15, requested by defendant.
Plaintiff's replication 2 was designed to plead the negligence of defendant's motorman subsequent to plaintiff's contributory negligence alleged in plea 2. The point of criticism seems to be that, while the replication alleges that the motorman discovered or saw plaintiff's automobile approaching on defendant's track, it fails to allege that the motorman realized the danger involved in the situation thus presented to his cognizance. The allegation is that the motorman "discovered or saw the automobile driven by the plaintiff approaching on defendant's said street car track, and that a collision between said automobile and street car was imminent unless," etc. To hold that this allegation fails to charge defendant's motorman with knowledge of the impending danger to plaintiff would involve useless refinement and an unjustifiable presumption against the motorman's understanding and appreciation of the meaning of an obvious situation. The case of subsequent negligence thus shown differs materially from the cases shown in defendant's cited adjudications. In L. N. v. Calvert, 170 Ala. 565, 54 So. 184, it was held that an allegation that plaintiff's danger was "apparent to the servants or agents of defendant" was not the equivalent of an allegation that said servants knew of plaintiff's peril; this in considering the sufficiency of a charge of wantonness which involved a knowledge of existing conditions involving danger to plaintiff. So, substantially, in B. R. L. P. Co. v. Cockrum, 179 Ala. 372, 60 So. 304, and other cases cited by appellant defendant. In Daniels v. Carney, 148 Ala. 81, 4 So. 452, 12 Ann. Cas. 612, 121 Am. St. Rep. 34, 7 L.R.A. (N.S.) 920, it was ruled that an allegation that the small boat in which plaintiff's intestate was riding was "plainly visible to defendant's servants" was not equivalent to an allegation that they knew. With these decisions we agree; but none of them quite serves defendant's purpose in this case. Our judgment is that plaintiff's second replication sufficiently stated a case of subsequent negligence against defendant's motorman.
Fault is further found with the second replication in its use of the word "proper" in charging defendant's motorman under the circumstances stated with the duty to make "proper use of the means at his command" to stop the car. This criticism savors of too great refinement. We do not construe the replication as exacting of the motorman infallibility of judgment or inerrancy in the use of the means at his disposal, as appellant appears to construe it, but as intending only that in the circumstances alleged he should have made such use of the means at hand as a motorman, fit for his job and intent upon avoiding an impending peril to a person on the track, could and would have made. That much was required of him.
The judgment must be affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.