Tillery v. Walker

Appellee suffered injuries from a collision with an automobile driven by appellant and had a judgment for damages in this cause. Counts 1 and 2 of the complaint were not subject to the demurrers interposed by appellant. The allegation is that the accident in suit happened at or near the intersection of Twenty-Third avenue and Seventh street in the city of Tuscaloosa, Ala. This was a sufficient allegation of the locus in quo and gave appellant defendant due notice of the place in question.

Quite a number of charges were refused to appellant and the rulings thus shown are assigned for error in bulk. By such assignment appellant assumed the burden of showing that each and every of the charges should have been given. Some of them, to say the least, failed to observe the rule, prevailing in this state, that a pedestrian crossing a street is not under the same duty as one who crosses a railroad track to stop and look and listen, though, of course, he must exercise such reasonable care as the attending circumstances may require. Ivy v. Marx, 205 Ala. 60, 87 So. 813, 14 A.L.R. 1173; Barbour v. Shebor, 177 Ala. 304, 58 So. 276, and authorities cited.

The evidence was in patent conflict as to where rested the blame for the accident. The question of appellant's liability was therefore one for jury decision, and the general charge requested by appellant was properly refused.

The judgment must be affirmed.

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