McGhee v. Birmingham News Co.

In order to recover in this action it is of course necessary for the plaintiff to show that her intestate's injury was the proximate result of a breach of duty owed to him by defendant through its servant Cornelius, who was driving defendant's truck at the time the intestate fell or was thrown therefrom.

The evidence shows without dispute, as is conceded by counsel for plaintiff, that the intestate was riding on this truck without the knowledge or consent of defendant, or of the driver, Cornelius, and was therefore, in legal contemplation, a trespasser, pure and simple.

It is well settled that the only duty owed to such a person under those circumstances is not to wantonly or intentionally injure him, and, if he is known to be in a dangerous position, to exercise due care to avoid injuring him. McCauley v. T. C. I. L. Co., 93 Ala. 356, 9 So. 611; B. R., L. P. Co. v. Sawyer, 156 Ala. 199, 47 So. 67, 19 L.R.A. (N.S.) 717; Lawrence v. Kaul Lumber Co., 171 Ala. 300, 55 So. 111; Hoberg v. Collins Co., 80 N.J. Law, 425, 78 A. 166, 31 L.R.A. (N.S.) 1064, and note.

Assuming that the jury believed all or any part or parts of the evidence before them, there is absolutely nothing upon which a breach of duty can be predicated, inferentially or otherwise; for, taking as true every item of the evidence which is favorable to plaintiff, and drawing therefrom every inference permissible, there is nothing that tends to show any knowledge on the part of the driver, Cornelius, that the intestate was in a place of peril, and likely to be injured thereby, at the time the truck was "speeded up" or "jerked." In the absence of such evidence plaintiff's case must fail.

The mere fact that a trespasser on a vehicle wishes to alight, and the driver agrees to stop in order that he may do so, does not impose upon the driver, in the operation of the vehicle, the duty of ascertaining at each step of its operation the position of his trespassing passenger, whether safe or dangerous with respect to the ordinary movements of the car.

Having started for the curb, and being yet six feet away, and in motion, he was not bound to turn his head to observe the movements of the intestate, nor to anticipate that he would attempt to alight out in the street at that distance from the curb, and while the truck was still in motion. If the intestate had been a lawful passenger for hire, no such precautions would have been due him. Being a trespasser, the driver was, as to him and his safety, under no restraints in his mode of moving or stopping the truck, unless he knew that the intestate was in a position of peril in relation to the movement contemplated — in this case an increase in the speed of the truck, with some resulting jerk.

The evidence was in conflict, but, in whichever aspect the jury may have viewed it, it was without any tendency to support an essential element of plaintiff's case, and the jury were properly instructed, without hypothesis, to find against the plaintiff.

Affirmed.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.