Government Street Lumber Co. v. Ollinger ( 1922 )

SAMFORD, J.

[1, 2] When two automobiles are being driven along a public road in the same direction, the relative duties the one owes to the other are to be governed somewhat by the circumstances of the particular case. The driver of the front car owes no duty to the rear or trailing car except to use the road in the usual way, in keeping with the laws of the road, and until he has been made aware of it, by signal or otherwise, he has a right to assume, either that there is no other automobile in close proximity to his rear, or that, being there, it is under such control as not to interfere with his free use of the road in front of and to the side of him in any lawful manner. In the absence of facts or circumstances that would put him on notice of the near approach of another automobile from his rear, the driver may drive slow or fast, select the parts of the road best suited to travel, stop or start at will, or turn into side roads, without the giving of signals of such intentions. Of course the rule would be different on the streets of a city, where the passage of automobiles along the streets is constant and frequent, requiring of all drivers of motor' vehicles a high degree of care and watchfulness, this of itself being sufficient notice of the near approach of other cars, and under the same circumstances, known to the driver, the same rule as applied to city streets would apply to county highways; but to be applicable, the facts must be specially pleaded, which is 'not done in this case.

[3] In a case where the charge is that-of simple negligence in the operation of an automobile along the public road, resulting in damage to .a car approaching from the rear, the rights of the defendant, as outlined above, would be available to him under the general issue in rebutting the imputation of negligence.

[4] Where two automobiles are traveling the public road in the same direction, the one ahead has the superior right, and m'ay continue to maintain its position, and it is only on request or “equivalent notice” that it must turn aside so as to leave sufficient room for the rear ear to pass. Mark v. Fritsch, 195 N. Y. 282, 88 N. E. 380, 22 L. R. A. (N. S.) 632, 133 Am. St. Rep. 800; Morrison v. Clark, 196 Ala. 670, 72 South. 305.

[5-7] It is the duty of a driver operating an automobile, upon approaching another automobile from the rear, while both cars are traveling in the same direction, to exercise a greater degree of care. He must look out for the man ahead, realizing that the man ahead is engaged in handling a high-power, dangerous machine, requiring constant attention and quick action, and that his lookout is ahead, and not behind. He must have his machine well in hand to avoid doing injury to the car ahead, so long as the man ahead is driving in accordance with his rights. If the driver of the rear car wants to pass he must not only sound his horn, but before he attempts to pass he must be reasonably assured that the man ahead knew he was behind, had heard the request, and accorded the right of way, before the driver of the car ahead can be charged with negligence in failing to give the right of way by reason of an usual use of the roadway. But, in order to acquit himself of contributory negligence, the driver of the rear car does not necessarily have to make known to the driver of the-forward car his presence and desire to pass. If the road is wide enough, and the way appears open, and it appears that passing may be had without injury or accident, and the-driver gives notice of his approach and desire to pass in the usual way, whether the driver of the forward ear has actual knowledge of such warning or not, the driver of the rear car would not on that account be guilty of negligence. Plea A and corresponding pleas, require too high a duty in this respect, and are demurrable. While not exactly in point, the following authorities-shed light upon the proposition, and are persuasive to the conclusions reached. Overton v. Bush, 2 Ala. App. 623, 56 South. 852; Morrison v. Clark, 196 Ala. 670, 72 South. 305; 2 R. O. L. p. 1194, § 29; Huddy on Automobiles (5th Ed.) § 256.

[8] In line with the foregoing plea O was held to be a good plea, which ruling is here affirmed, on the idea that the notice there alleged to have been given was the usual and reasonable notice usual in such eases.

[9] The case to this point presents a charge against the defendant of general negligence in the operation of his automobile and an answer of contributory negligence on the part of defendant in attempting, to pass without giving notice and without the knowledge of defendant. The reply of plaintiff was by way of confession and avoidance. The plea alleged no notice or knowledge on the part of the defendant. The replication alleged what was done by way of giving notice, and the act of defendant apparently in response thereto, and the sudden change of the act of defendant. If the allegations in the replications are true, the plaintiff was not guilty of contributory negligence in attempting to pass defendant’s car, although defendant may have actually had no knowledge. Having given notice by sounding his horn, and seeing defendant immediately turn to the right, plaintiff had a right to act upon the reasonable appearance of things, and to assume that defendant had heard the signal and yielded the right of way, to which he was entitled under section 20, Acts 1911, p. 042. And, while the replication may not be as complete as might be, such defects are not reached by the grounds assigned.

The testimony of the witness Jagoe was sufficient, if believed by the .jury, to prove plaintiff’s replication, and therefore defendant was not entitled to the general charge upon the proposition that there was no evidence to sustain the replication.

[10] If the defendant did not know of the approach of plaintiff’s car, and, without knowing or being in possession of such facts as would charge him with knowledge, turned shortly across the road for the purpose of entering a side driveway or for any other lawful purpose, without giving a signal to a man whom he did not know and had no reason to believe was approaching, he would not be guilty of actionable negligence; the rule being that the driver of an automobile on a public highway must use such care as a reasonably prudent m'an would use under such circumstances. Hester v. Hall, 17 Ala. App. 25, 81 South. 361.

The charges refused to defendant asserting the foregoing proposition, when properly drawn, should have been given, but, in view of the fact that the whole theory of this case has been fully discussed in rulings on pleading, we deem it unnecessary to further discuss it here.

[11] Demurrers to plea F and similar pleas were properly sustained. The right of action remained in plaintiff, and as to whether the insurance company, by reason of having paid the damage, was entitled to the proceeds of the recovery was of no concern to defendant. So. Garage Co. v. Brown, 187 Ala. 484, 65 South. 400.

For the error pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

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<@=>For other cases see same toj>ic and KEY-NUMBER in all Key-Numbered Digests and Indexes