Mobile Light R. Co. v. McDonnell , 207 Ala. 161 ( 1921 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Mary E. McDonnell brings this suit against the Mobile Light Railway Company to recover damages for injuries to her automobile, the result of a collision between the street car and automobile, as the automobile was crossing or about to cross the track of the defendant in the city of Mobile.

The defendant has two tracks on Government street. This street runs in an easterly and westerly direction. Marine street connects with Government street practically at right angles. Defendant has one track on Marine street, which curved toward the east until it connected with the north track on Government street by switch. The collision occurred on Government street, at a point south of the main tracks of defendant on that street. The automobile was crossing on or about to cross the curve track of defendant, which runs from the Government street track to the Marine street track, and the street car was turning on the curve track from its Government street track on the north into the Marine street track. The automobile was running east; the street car had been running west, and was turning to run south at the time of the collision.

There was a jury, and verdict in favor of plaintiff for $1,350, judgment thereon, and the defendant appeals.

Counts 1 and 2 charge that the motorman of defendant negligently caused or negligently allowed the street car to collide with the automobile. Counts 3 and 4 charge that the motorman of defendant wantonly caused or wantonly allowed the street car to collide with the automobile.

The defendant filed 12 pleas to counts 1 and 2. The court sustained demurrers to pleas Nos. 8 and 11. These are pleas of contributory negligence. Their sufficiency is questioned by the demurrers. Each plea alleges in substance facts showing it was the duty of the driver of the automobile on this public street before crossing the track of defendant to look for an approaching car; it avers the driver saw the street car near the curve track, failed to continue to observe its motion, attempted to cross the track without watching the car, and, if he had watched or observed its motion before attempting to cross, he could have avoided the collision by slowing the speed of the automobile, or by going around the street car, and, failing to do so, thereby proximately contributed to the injury.

This court, in Schmidt v. Mobile Lt. R. R. Co., 204 Ala. 694,87 So. 181, wrote:

"The whole burden of stopping, looking, and listening, as a matter of law (in every case), has not been placed on a pedestrian or driver of a vehicle upon or crossing a public street in a city, town, or village as regards street cars being propelled thereon."

And in Ross v. Brannon, 198 Ala. 124, 73 So. 439, this court declared:

"It is the duty of a traveler on a public street over which street cars are operated to look for an approaching car, and, if the street is obstructed, to listen, and in some instances to stop."

These pleas comply substantially with that rule declared by this court. Each avers facts which disclose a duty on the driver of the automobile to look for an approaching car before crossing the curve track; they aver facts showing, if he had observed that duty, how he could have avoided the injury; and they aver facts showing by his negligently breaching the duty he contributed proximately to the injury. The demurrers assigned to pleas 8 and 11 should have been overruled.

The demurrers of plaintiff to pleas 9 and 10 to the counts Nos. 1 and 2 were sustained by the court. Plea No. 9 set up this ordinance of the city of Mobile:

"All vehicles except when passing a vehicle ahead, shall keep reasonably near the right-hand curb, and when overtaken by any vehicle shall bear off to the right as near to the curb as practicable, while the overtaking vehicle shall pass by the left side of the vehicle overtaken, and must then not return to the curb line until entirely clear of the overtaken vehicle."

The plea alleges that, at the time of the collision, the driver of the automobile was violating that ordinance. It does not aver sufficient facts to show a violation of the ordinance. It avers no facts showing the failure of the automobile driver to observe the ordinance contributed in any degree to the injury. If the breach of the duty imposed by the ordinance contributed in no way to the injury, then it would be no defense to the action. The demurrers to this plea were properly sustained. Watts v. Montgomery Traction Co., 175 Ala. 102,57 So. 471.

Plea 10 also sets up the following ordinance in the city of Mobile:

"No motor vehicle shall be run at a speed greater than 15 miles per hour across and over street crossings or intersections, and shall turn the corners of streets at crossings at a speed of not more than 10 miles per hour, except that in crossing streets persons going northwardly or southwardly must slow their vehicles down to such a slow rate of speed as to enable them to avoid collision with vehicles going eastwardly or westwardly, which have the right of way."

This plea avers at the time of the collision plaintiff's chauffeur was operating her automobile in violation of the ordinance by running it across the track of defendant at a rate of speed in excess of 15 miles an hour. No facts are alleged showing the rate of speed of the automobile being in excess of the rate allowed by the ordinance contributed proximately to the injuries. This is necessary. Hence there was no error in sustaining demurrers to this plea. Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471.

Demurrers to pleas 3, 5, and 7 as originally filed, and as amended to counts 1 and 2, were sustained by the court. These pleas allege that defendant, for the purpose of enabling prospective passengers to distinguish between its cars, which go out Marine street and Government street, has a sign on each car indicating the street it is going on, the Government street car carrying a sign of Government street, and this car carried such sign; that defendant's barn for all of its cars was at the south end of Marine street. Then the pleas aver plaintiff's driver observed said car on government street track as it approached or was near the curve switch at Marine street, and he saw that it was marked "Government street," and negligently failed to pay any further attention to the car, whether it was going straight out Government street or coming around the curve into Marine street; and each plea avers facts showing he attempted to cross the curve track of defendant leading into Marine street "without looking for an approaching car."

The driver, having seen that the street car contained the sign "Government Street," just before or just as it reached the Marine street curve, was not thereby relieved of the duty of looking for an approaching car before attempting to cross and before crossing the curve track of defendant, running in a public street toward Marine street. The driver of the automobile was not relieved of the duty to look for the approach of this car before crossing or attempting to cross the curve track of defendant, as the car when he observed the Government street sign on it had not reached the curve track where the sign for prospective passengers might be changed from Government street to Marine street, and as the car when observed by him was moving or standing still in close proximity to the curve track he intended to cross. If the driver of this automobile, from the facts alleged in each plea, had looked for the approach of any car, as it was his duty to do before crossing or attempting to cross the curve track, he would have observed this car running on the curve track toward Marine street in time, by the exercise of due care and reasonable diligence, to have avoided the collision. Each of these pleas sets up sufficient facts to constitute a contributory negligence defense to counts 1 and 2, and the demurrers to them were improperly sustained.

In Ray v. Brannan, 196 Ala. 113, 72 So. 16, this court clearly expressed that principle of law as follows:

"But this right to expect the observance of specific, legal duties by others does not excuse any one from observing the specific duties imposed by law upon himself; and his failure to do so, if the proximate cause of his injuries, would as a matter of law defeat his right of recovery."

See, also, L. N. R. R. Co. v. Mothershed, 97 Ala. 261,12 So. 714; A. G. S. R. R. Co. v. Roach, 110 Ala. 266,20 So. 132.

The plaintiff filed two replications to pleas 2, 4, 6, and 12 after demurrers to them were overruled. The facts averred in these pleas are substantially the same as those set up in said pleas 3, 5, 7, 8, and 11, except that these pleas do not aver that the defendant's street car was marked "Government Street" before and when reaching the Marine street curve switch.

This replication No. 1 is defective in failing to state the location of the street car with "Government Street" sign on it when observed by the driver of the automobile; it may have been before or just as it reached the 'Marine street curve switch, where its custom was to change it, which fact was known to the driver. The car being marked "Government Street" did not relieve the driver of the automobile of the duty of looking for "an approaching car before crossing the track," as averred in the pleas. The replication avers:

"He (the driver) was thereby induced to proceed along the south side of Government street towards Marine street without taking any further notice of said car, until said car perceptibly turned towards Marine street, and said chauffeur could not then, by using with reasonable diligence the means at his command, stop said automobile before it reached Marine street and collided with defendant's said car."

From the replication it appears, if the sign had been changed just as the street car entered the Marine street switch, defendant's situation would not have been improved, and the collision prevented, as the automobile driver "took no further notice of the street car" until it was too late to stop the automobile to prevent the collision.

This replication is also defective in failing to aver, by using with reasonable diligence the means at his command, he could not have avoided the collision by turning the car in some other direction or by diminishing or by increasing the speed of it. She (plaintiff) merely avers that she could not have avoided the collision by stopping the car before reaching Marine street. This was not sufficient answer to either of the pleas. L. N. R. R. Co. v. Robinson, 141 Ala. 325, 37 So. 431. The court overruled the demurrers to this replication to those pleas. It was error. The demurrers should have been sustained.

Replication 2 to said pleas sets up an ordinance of the city of Mobile which gives all vehicles going in an easterly or westerly direction the right of way over all vehicles going in a northerly or southerly direction. The plaintiff avers that the chauffeur was driving her automobile from a westerly to an easterly direction, and the car of defendant was turning southwardly at the time of the collision. This replication is defective in failing to aver facts showing failure to observe the ordinance by defendant was the proximate cause of the injury. This replication is an insufficient answer to the pleas, as said ordinance does not relieve the driver of plaintiff's car from the duty, alleged in the pleas, of looking for an approaching car before crossing the track of the defendant; and the replication does not therefore answer the plea nor aver facts avoiding it. Ray v. Brannan, 196 Ala. 113, 72 So. 16; L. N. R. R. Co. v. Mothershed, 97 Ala. 261, 12 So. 714. The demurrers to replication 2 were overruled. They should have been sustained.

The plaintiff amended the complaint by adding counts Nos. 5, 6, 7, 8, and 9. Demurrers of defendant to count No. 5 were sustained, and overruled as to counts Nos. 6 and 9.

Counts Nos. 6 and 9 each set up said city ordinance. This ordinance states it applies to "everything on wheels" when using the streets of the city. It makes it the duty of all vehicles turning to look out for and avoid other vehicles in motion. It gives vehicles the right of way going in an easterly and westerly direction over vehicles going in a northerly or southerly direction in the streets of the city. It avers the automobile was going in an easterly direction on Government street, and the street car was turning south from Government street and into Marine street at the time of the injury. Count No. 6 contains these additional averments:

"And the defendant's motorman, in charge of said car, negligently failed to look out for and avoid plaintiff's automobile, and by reason of said negligence caused or allowed said street car to collide with plaintiff's said automobile."

And count No. 9 contains this additional averment:

"And that the defendant's motorman, in charge of said car, negligently failed to avoid plaintiff's automobile, and as the proximate result of said negligence caused said street car to collide with plaintiff's said automobile."

Each of these counts — 6 and 9 — alleges a duty due plaintiff by defendant to look out for and avoid collision with the moving automobile when turning the curve on the street at the time and place mentioned. Count 6 avers defendant's motorman in charge of the car negligently failed to look out for and avoid plaintiff's automobile. Count 9 alleges he negligently failed to avoid plaintiff's automobile. Both counts allege as a proximate result of said negligence there was a collision, and her automobile injured. Thus it appears in each count that a duty is alleged, a negligent breach of it is averred, and an injury is declared as a proximate consequence thereof.

In count 6 plaintiff must prove a negligent failure to look for the automobile and a negligent failure to avoid it by the motorman. In the ninth count the burden is on plaintiff to show that the motorman negligently failed to avoid the automobile. And in each count the burden is on plaintiff to show that the negligence averred was the proximate cause of the injury. Hence these counts were not subject to the demurrers, and no errors were committed when the court overruled them. Ray v. Brannan,196 Ala. 113. 72 So. 16; Railroad Co. v. Mothershed, 97 Ala. 261,12 So. 714; B'ham R. E. Co. v. Baker, 126 Ala. 135,28 So. 87.

The defendant refiled original pleas 1, 2, 4, 6, 10, 11, and 12, and pleas Nos. 3, 5, 7, and 9, as amended to counts Nos. 7 and 8. The plaintiff demurred to each of said pleas from 2 to 12, both inclusive. The court sustained demurrers to pleas Nos. 2, 4, 6, 10, 11, and 12 to counts Nos. 7 and 8. We find no ruling of the court on the demurrers of plaintiff to pleas Nos. 3, 5, 7, and 9 as amended to counts Nos. 7 and 8.

The rulings of the court on these pleas are not discussed in the briefs and arguments of the attorneys as to their application to these counts Nos. 7 and 8, but they are as to counts Nos. 1 and 2. In this opinion we have considered and passed on the rulings of the court on each plea as to counts Nos. 1 and 2, and we feel that a further discussion would be unnecessary, particularly so when the parties waive it by not insisting on it in their argument.

This charge, No. 1, asked by plaintiff, was given by the court:

"If the jury is reasonably satisfied from the evidence that the defendant's street car was going west upon the defendant's most northern track on Government street, and stopped at the switch points leading from said tracks south, upon the Marine street track, and the motorman saw plaintiff's automobile approaching on the south side of Government street, too close to be able to stop before reaching Marine street track, and, after seeing this, he caused defendant's car to turn south upon the Marine street track, and thereby caused the collision complained of, the jury should find for the plaintiff."

It may have been impossible, as stated in the charge from some of the evidence, if believed by the jury, to stop the automobile before the collision; yet there was the tendency at least of other evidence indicating that the collision might have been avoided by increasing or decreasing the speed of the automobile, or by changing its course and going around or ahead of the street car. L. N. R. R. Co. v. Robinson, 141 Ala. 325,37 So. 431. The appellee claims the charge is requested clearly as to subsequent and not wanton negligence; yet it does not hypothesize sufficient facts to show peril to the automobile and knowledge thereof by the motorman. The motorman may have seen that the car could not stop before reaching the track; yet he may also have seen that it could cross the track by increasing its speed before the street car reached it, or he may have seen that it could by turning its course avoid the collision; all of which was ignored by the charge. The court erred in giving the charge. Anniston E. G. Co. v. Rosen, 159 Ala. 195, 48 So. 798, 133 Am. St. Rep. 32; L. N. R. R. Co. v. Bouldin, 110 Ala. 185, 20 So. 325; L. N. R. R. Co. v. Robinson, 141 Ala. 325, 37 So. 431.

Charge 24 asked by defendant was properly refused by the court. It is clearly argumentative, and it fails to hypothesize, if "the jury believe from the evidence" the chauffeur did not see the street car after it started around the curve, but practically assumes such to be the fact, without submitting it to the jury under hypothesis. It is argumentative and calculated to mislead the jury.

The court did not err in refusing charge 11 asked by the defendant. It is in the alternative. Some of the alternatives are clearly abstract; and the charge is also argumentative. It is abstract in some respects, misleading, and argumentative.

Charge 12 was refused by the court. This was not error. It assumes plaintiff's car was "approaching from Marine street." The entire evidence shows the automobile was running east on Government street, and approaching the track on Government street that runs to Marine street, and not "approaching from Marine street." This charge assumes facts which should be submitted under hypothesis to the jury. It invades the province of the jury.

The general affirmative charge, with hypothesis as to each count in favor of defendant, was requested by appellant, and each was refused by the court.

This case must be reversed for errors hereinbefore mentioned. It will serve no good purpose for us to analyze the testimony to see if the court erred under the present issues of this case in refusing any one of those charges, as the testimony may be different and the issues changed on another trial.

For the errors mentioned, the case is reversed and remanded.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.