Ivy v. Marx

This appeal presents but a single question, Did the defendant, in the court below, while driving his automobile on Twenty-First street in the city of Birmingham, owe any duty to the plaintiff to keep a lookout while the latter, a pedestrian, was crossing said street at a place other than at the highway intersection in the city of Birmingham, in violation of a municipal ordinance then in force.

The trial court instructed the jury that if the plaintiff was violating said ordinance, and such violation was the proximate cause of the injury, then he would be guilty of contributory negligence, and could not recover but refused the charge appearing in the statement of the case, which is to the effect that the violation of such municipal ordinance by the plaintiff exempted the defendant from the duty of keeping a lookout for him.

It is well recognized as a general rule of law that an automobile driver owes a duty to keep a lookout for pedestrians not only at street crossings, but between street intersections. Buddy on Automobile, § 435, and note; 28 Cyc. 28, 29; 2 R. C. L. 1186; note to Baker v. Close (N.Y.) 38 L.R.A. (N.S.) 487. In Adler v. Martin, 179 Ala. 97, 59 So. 597, is the following quotation, here applicable, from Baker v. Close, supra:

"A pedestrian who crosses a street at a place where there is no regular crossing may be chargeable with some additional vigilance, because it is not a place set aside for the crossing of foot passengers, although even at such a place drivers are required to be watchful and careful."

In Barbour v. Shebor, 177 Ala. 304, 58 So. 276, this court said:

"The simple rule is that drivers on the street and pedestrians, each recognizing the rights of the other, are required to exercise reasonable care."

So, it is held in this state that the rule with regard to stopping, looking, and listening before crossing a railroad is without application to a person crossing a street. Corona Coal Iron Co. v. White, 158 Ala. 627, 48 So. 362, 20 L.R.A. (N.S.) 958; Barbour v. Shebor, supra; Adler v. Martin, supra.

It therefore appears that the general rule of law required the defendant to keep a lookout for pedestrians while driving his car upon Twenty-First street in the city of Birmingham, whether the pedestrian was crossing the street at the regular crossing or diagonally.

The sole remaining question therefore is whether or not the municipal ordinance requiring pedestrians to cross the street at the street intersection, and not diagonally, punishing a violation of same by fine or imprisonment, has so changed the general rule as to the duty of the defendant to keep a lookout for pedestrians as to exempt him therefrom, when the pedestrian is crossing the street in a manner violative of such ordinance. It is plain there is nothing in the ordinance so indicating; but it is merely a traffic regulation, passed by the city to better conserve the public safety. It was certainly passed with a view to protect human life, and to give the ordinance a construction which would sanction a relaxation of vigilance on the part of drivers of automobiles upon the public streets would run counter to its evident intent. To construe the ordinance as contended by defendant would mean, in this case, that the defendant had the right, so far as any duty owing to the plaintiff as a pedestrian crossing the street at a place other than the street intersection was concerned, to drive his car blindly along such thoroughfare, and answerable only for wanton conduct or negligence after discovery of plaintiff's peril.

Counsel for appellant rely upon those authorities, which hold that a railroad owes to a trespasser upon its track no duty, except the exercise of reasonable care and diligence to avoid injurying him as soon as his peril becomes apparent. Thornton v. Southern Ry. Co., 199 Ala. 532, 75 So. 4, among other authorities.

The plaintiff, however, although violating the traffic ordinance, was not a trespasser upon the street. We think the reasoning of the court in Shimoda v. Bundy, 24 Cal.App. 675,142 P. 109, and Hemming v. City of New Haven, 82 Conn. 661,74 A. 892, 25 L.R.A. (N.S.) 734, 18 Ann. Cas. 240, Bourne v. Whitman, 209 Mass. 155, 95 N.E. 404, 35 L.R.A. (N.S.) 701, and the holding of this court in Stovall v. Corey Highlands Land Co., 189 Ala. 576, 66 So. 577, sufficiently sustain this view.

But the argument of counsel is, in any event, unsound as applicable to the case in hand, for it is now established by our decisions that where a car track forms a part of the street, it is the duty of those operating on same to keep a lookout, and no distinction is recognized between keeping a lookout for one prone and one erect upon the track. In Southern Ry. Co. v. Stewart, 179 Ala. 304, 60 So. 927, speaking of this duty, when the car track ran along and formed part of the street, this court said:

"It was the duty of the motorman to keep a lookout for all persons liable to be run over, no matter how they got on the track, and no matter what they were doing there, and the failure to do so would be simple or wanton negligence according to the circumstance."

See, also, Montgomery Lt., etc., Co. v. Baker, 190 Ala. 144,67 So. 269; Birmingham Ry., Lt. Power Co. v. Brantley,141 Ala. 614, 37 So. 698; Ala. City G. A. Ry. Co. v. Lumpkin,195 Ala. 290, 70 So. 162.

This being the rule therefore governing those operating cars upon a track which runs along and forms a part of a street, certainly a sound public policy for even greater reasons would require a like vigilance as to the driver of an automobile along the public thoroughfares of the city, whether the pedestrian be crossing the street in accordance with traffic regulations or in violation thereof.

Our conclusion is that the ordinance carries its own penalties, and was not intended to relieve the drivers of automobiles from any existing duties. The charge requested by the defendant was properly refused.

It results that the judgment appealed from will be affirmed.

Affirmed.

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