Reaves v. Maybank

• Decision Date: 08 April 1915
• Docket Number: 698
• Citation: 69 So. 137,193 Ala. 614
• Parties: REAVES v. MAYBANK.
• Court: Alabama Supreme Court

69 So. 137

193 Ala. 614

REAVES v. MAYBANK.

No. 698

Supreme Court of Alabama

April 8, 1915

On Rehearing, May 20, 1915

Appeal from Circuit Court, Talladega County; Hugh D. Merrill, Judge.

Action by G.W. Reaves against T.D. Maybank, for damages for the death of plaintiff's son caused by an automobile collision. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The following are the assignments of error referred to in the opinion:

(5) Oral charge of the court: "If defendant or his chauffeur did what ordinarily prudent men would have done on this occasion, there was no negligence."

(7) Written charge 2 1/2 given for defendant: The court charges the jury that it was the duty of defendant to exercise reasonable care to avoid injuring deceased; that is such care as a reasonably prudent man would exercise under the circumstances. If the driver of the car did exercise such a degree of care, and the injury resulted notwithstanding such care, defendant was not liable in this case.

(8) In giving the jury charge B requested by the court: It was the duty of defendant and the driver of the car to act as a reasonably prudent man would have acted under the circumstances, and, if they did so act, the jury must find the issues in favor of defendant.

Riddle & Burt, of Talladega, for appellant.

Knox Acker, Dixon & Sims, of Talladega, for appellee.

McCLELLAN J.

The automobile, a type of motor vehicle, is now a generally recognized means of conveyance of persons and things over the thoroughfares of this state. It is not in itself a nuisance and, against its proper use or operation in the streets and highways of the state, the law, statutory or otherwise raises no prohibition.

The automobile being a convenient, appropriate, and recognized instrument of conveyance and transportation, the public ways are open to its proper use, just as they are open to the proper use of other appropriate and recognized means of conveyance. While the proprietor of the automobile is entitled to drive or to have it driven over the thoroughfares of the state, the law exacts of the operator of the machine in a public way a prudent and careful regard for the rights of others and for others who may be or who are lawfully using the public way. From the common right of use of the public ways, the automobile is not excluded; but, in the enjoyment of that right, prudence and care is exacted of the operator of such machines.

It necessarily results from the status made by the stated right to operate automobiles over the public ways that operators of automobiles in and over ways are only liable for the consequences of negligence in respect of the enjoyment of the common right hereinbefore affirmed. McCray v. Sharpe, 66 So. 441. A statement of the generally accepted doctrine thus approved in this jurisdiction will be found in 28 Cyc. pp. 25, 26, and in the cases thereon noted.

The degree of care with respect to the rights of others and to others lawfully using the public way, due to be observed by the operator of an automobile in a public way, is that care a reasonably prudent man would observe under like circumstances. McCray v. Sharpe, supra; Barbour v. Shebor, 177 Ala. 304, 310, 311, 58 So. 276; 28 Cyc. pp. 27, 28. The rule is thus stated in Barbour v. Shebor, supra:

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

The driving of an automobile on a public highway necessarily imposes upon the person in charge of its operation the duty of exercising reasonable care to avoid inflicting wrong and injury upon others who may lawfully be using the same highway.

In view of the thus established doctrine in this jurisdiction, it need hardly be said that the "highest degree of care" is not exacted of operators of automobiles on public highways in this state.

While reasonable, ordinary care, as above set down, must be exercised, what consists on occasion with that requirement must vary with and must depend upon the circumstances of the particular case. McCray v. Sharpe, supra.

"There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms 'ordinary care,' 'reasonable prudence,' and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court." Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 417, 12 Sup.Ct. 679, 682, 36 L.Ed. 485.

The issues submitted to the jury were those made by the averments of counts 1 to 4, inclusive, and a general traverse of the averments of those counts. Two of these counts attribute the death of plaintiff's (appellant's) seven year old son to simple negligence, in the operation of defendant's (appellee's) automobile, in a public highway near Talladega, Ala.; and two of the counts attribute the child's death to willful or wanton omission or misconduct in the operation of the defendant's automobile on that occasion. These respective causes of the wrong charged are ascribed to the defendant himself, in two of the counts, and to the defendant's chauffeur, Smith, in the other two counts. And it may be pronounced at this point that, on the evidence in the record, it is too clear to admit of any doubt that the plaintiff was not entitled to the general affirmative charge on any one of the counts indicated. Grand Trunk Ry. Co. v. Ives, supra.

The defendant was in his 7 passenger automobile en route from Talladega to Anniston. Smith was driving; and the defendant was seated beside him. There were several ladies occupying the rear seats in the car. As the car came over the crest of a hill, approximately 90 yards away from the place where the child was killed, the driver and the defendant observed 7 children, the oldest about 11 years of age, traveling or loitering in the public road. As the car came on toward them, the children, dividing, went to or about the margins of the road. The plaintiff's son either, as the plaintiff contended, undertook to run across the road in front of the approaching, unretarded and rapidly moving car, and was hit by it, or as the defendant contended, when the car was within about 10 feet of the point of collision, he started across the road, from a place of safety to which he had previously gone, seeing the car approaching, and himself ran into the fender some feet from its front line.

The errors assigned and argued relate alone to three rulings on matters pertaining to the evidence, to the instruction of the jury, and to overruling the motion for new trial.

There is no merit in assignments 23 and 4, based upon rulings touching the examination of witnesses. The first complains of the court's action in sustaining the defendant's objection to the following question, propounded by plaintiff's counsel to the defendant, whom the plaintiff called as his witness: "You are not responsible for what you were testifying before the coroner's jury?" The question called for no fact. If anything, pertinent to the issues involved, it sought an expression of the witness' opinion as to his accountability. Otherwise he had been confronted with the signed statement of his evidence given before the coroner and had testified that it was erroneous in one particular. He offered the explanation that the occasion of his examination before the coroner was two days after the tragedy, and that he was then excited.

The next assignment in this category is predicated...