Watts v. Montgomery Traction Co.

• Decision Date: 18 January 1912
• Citation: 175 Ala. 102,57 So. 471
• Parties: WATTS v. MONTGOMERY TRACTION CO.
• Court: Alabama Supreme Court

57 So. 471

175 Ala. 102

WATTS v. MONTGOMERY TRACTION CO.

Supreme Court of Alabama

January 18, 1912

Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Action by Edw. S. Watts against the Montgomery Traction Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The action was for damages to an automobile, caused by the automobile being struck by a car and demolished; the automobile at the time being run ahead of the car and in the same direction as the car.

Plea 8 is as follows: "Defendant says: That the accident occurred on one of the streets of the city of Montgomery within the limits of said city. That at said time, and for a long time, there had been an ordinance of the city of Montgomery in force and effect, namely, section 1093 of the City Code of Montgomery, reading as follows: 'Sec. 1093. Any person who willfully fails to keep to that side of the street which is to the right of the driver while driving any vehicle through the streets * * * must on conviction be fined not less than $1.00 nor more than $100.00.' That on the day and date of the alleged injuries of the said automobile the same was being driven by one Felder, who negligently and in violation of said ordinance failed to keep to that part of the street on his right, but drove the same along the middle of said street, and in that part of the same where defendant's tracks are located, so that defendant's car could not safely pass same without colliding therewith and the negligence of said driver of said automobile and violation of said ordinance, to keep to the right of the street, contributed proximately to the injuries complained of in the complaint."

The fifth ground of demurrer was that the ordinance referred to was not passed, according to the averments of said plea, for the benefit of the defendant, or its employés engaged in the business of the defendant.

J. T Letcher, for appellant.

Ray Rushton and W. M. Williams, for appellee.

ANDERSON J.

The decisions as to the legal effect of violating a statute or ordinance are not harmonious. In some cases it is held that such violation is not negligence per se, but that it is competent evidence of negligence, and may be sufficient to justify a jury in finding negligence in fact. 29 Cyc. 437 and cases cited in note. However, it is settled in Alabama, and we think it is the weight of authority, that a violation of a statute or an ordinance is negligence per se, and a person proximately injured thereby may recover for such injuries against the violator of the law. Kansas City R. R. v. Flippo, 138 Ala. 487, 35 So. 457; Sloss-Sheffield Co. v. Sharp, 156 Ala. 289, 47 So. 279; Wise v. Morgan, 101 Tenn. 273, 48 S.W. 971, 44 L. R. A. 548; Parker v. Barnard, 135 Mass. 116, 46 Am. Rep. 450; Newcomb v. Boston Prot. Dpmt., 146 Mass. 596, 16 N.E. 555, 4 Am. St. Rep. 354; Terre Haute R. R. v. Williams, 172 Ill. 379, 50 N.E. 116, 64 Am. St. Rep. 44; Rosse v. St. Paul R. R., 68 Minn. 216, 71 N.W. 20, 37 L. R. A. 591, 64 Am. St. Rep. 472.

We are not cited to and have found no Alabama case where the violation of a statute or ordinance by the injured party was pleaded by the defendant by way of contributory negligence yet we see no reason why such a violation, if proximately causing the injury complained of, cannot be set up as a defense to the simple negligence charged in the complaint. Such a defense has been approved, and we think properly so, in the cases of Broschart v. Tuttle, 59 Conn. 1, 21 A. 925, 11 L. R. A. 33; Weller v. Chicago R. R., 120 Mo. 635, 23 S.W. 1061. The statute or ordinance violated, however, must have been enacted for the benefit of the party who seeks to invoke its violation as distinguished from...