Racine Tire Co. v. Grady

The correctness of the two charges, given at the request of the defendant, which appear in the statement of the case, is the only question presented here for consideration. By these charges, the court in substance instructed the jury that, if from the evidence plaintiff, without any necessity therefor, placed himself in a position of danger through inadvertence, forgetfulness, inattention, absent-mindedness, or carelessness, he would be guilty of contributory negligence as to bar his recovery under count "A," if they believe such negligence proximately contributed to cause his injury.

Under the general rule recognized by the former decisions of this court, these charges correctly stated the law, as declared by this court in the recent case of City of Birmingham v. Edwards, 201 Ala. 251, 77 So. 841. In that decision, we cited some of our former cases, to which we may add, as bearing upon the same question, Chewning v. Ensley Ry. Co., 100 Ala. 493,14 So. 204; Tuscaloosa Water Co. v. Herren, 131 Ala. 81,31 So. 444.

The court below seems to have relied upon the Edwards Case, supra, as condemning the charges; but the Edwards Case was intended as being confined to suits by pedestrians against the municipality for injuries resulting from a defect in its street and sidewalks, and was not intended to excuse negligence on the part of the pedestrian as to traffic situations on account of mere forgetfulness or inattention.

A pedestrian upon the city streets has the right to assume, unless he has knowledge or reason to believe to the contrary, that the street is in a reasonably safe condition for travel, and this right to so presume on the part of the pedestrian was extended by the Supreme Court of Wisconsin in Simonds v. Baraboo, 93 Wis. 40, 67 N.W. 40, 57 Am. St. Rep. 895, to cases where the pedestrian had knowledge of the previous existence of the defect in the sidewalk, which was in a conspicuous place, and of such character that, with very little time and expense, it could have been safely repaired. The authorities cited in the note of Lerner v. City of Philadelphia, 221 Pa. 294,70 A. 755, 21 L.R.A. (N.S.) 614, disclose that the overwhelming weight of judicial opinion permits pedestrians in such cases to offer as excuse for momentary forgetfulness some reasonable excuse therefor, which must arise, however, apart from mere inattention.

In Mayor and Aldermen v. Cain, 128 Tenn. 250, 159 S.W. 1084, Ann. Cas. 1915B, 762, the Supreme Court of Tennessee points out many reasonable causes which may be offered as excuse in such cases for forgetfulness, inattention, or inadvertence, such as arise from a runaway horse, a rabid dog, or the approach of any dangerous animal, a sudden fire alarm, the suddenly communicated illness of a friend or relative, and other instances, some of which were noted in the Edwards Case.

The continuing duty on the part of the city to keep its streets in reasonable repair for pedestrians, and the right of pedestrians to so assume, places cases of that character in a class to themselves. As to whether or not this exception to the general rule — for such it must be recognized — should be extended to cases arising under other circumstances, the authorities are in conflict. But this court indicated in the Edwards Case that the previous decisions of this court would preclude its further extension. This, however, it is unnecessary to decide, for even if it should be conceded for the sake of argument that the exception could be extended so as to embrace the instant case, yet there is no evidence here justifying its application, for, as previously noted, the cause given as excuse for the momentary forgetfulness must be something apart from inattention itself.

Here there was nothing unusual to divert the attention of the plaintiff, and give excuse for momentary forgetfulness. True, he seemed to have a roll of bills in his hands, and exchanged his money and bank book from one pocket to another, and there is some intimation in brief that his mind was absorbed in financial affairs, which would excuse his forgetfulness to look, after passing in front of the street car, for approaching vehicles or automobiles. To this proposition we cannot agree, for we apprehend that, if absorption of thought upon money matters were to be recognized as an excuse for forgetfulness, then certainly no adult male person with a family to support in these strenuous times could ever be charged with negligence as a matter of law on that account. In the courtroom, at least, money would no longer be known as the "root of all evil," but as an ever-present excuse for forgetfulness.

The plaintiff testified that he was thoroughly familiar with this crossing, going over it each morning about the same time, for five or six years, and knew the frequency of travel thereon. He had passed the car two steps or more, and admits he does not know whether or not he looked for approaching vehicles. The degree of care required of the ordinary prudent person under such circumstances called for the exercise of his faculties, and placed this duty upon him, If, as he insists, "looking would have done him no good," then his failure to look would not have been the proximate contributing cause of the accident, but this was a question for the jury, which was not at all affected by these given charges.

We find nothing in the evidence which would bring the case within the exception, even conceding — without deciding — its application to such a situation, and the charges, being correct instructions on the testimony in the case, were properly given, and the motion for a new trial was erroneously granted upon this ground.

It results, therefore, that the judgment granting the new trial will be reversed, and judgment here rendered denying same.

Reversed and rendered.

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