Adler v. Martin

Decision Date13 June 1912
Citation59 So. 597,179 Ala. 97
PartiesADLER v. MARTIN.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by E. L. Martin, as administrator, against S. M. Adler. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Simpson Mayfield, and Sayre, JJ., dissenting in part.

Plaintiff's intestate, a man 29 years of age, was killed about 10 a. m. on May 7, 1910, on Twenty-First Street Bridge, in the city of Birmingham, by an automobile belonging to the defendant, and driven by defendant's servant. Counts 1 and 4 of the complaint charge that defendant's servant in charge of the machine negligently caused or allowed it to be run upon and against intestate, thereby causing his death. Count 2 charges that said servant willfully and wantonly drove and propelled the machine upon and against the body of intestate thereby causing his death. Count 3 imputes intestate's death to the unlawful act of defendant's servant in then and there running said machine at a greater rate of speed than 10 miles per hour, in violation of section 16 of the City Code of Birmingham, which is set out in full. Count 5 imputes intestate's death to the unlawful act of defendant's servant in then and there running said machine without giving signals at short intervals, either by a bell, horn, or whistle, in violation of section 16 of the City Code of Birmingham, which is set out in full as follows "No automobile, motor car, motor carriage, or other vehicle of like kind or description, whether propelled by steam, gasoline, electricity or other power, shall be run within the corporate limits of the city of Birmingham at a greater rate of speed than ten miles per hour, or shall be run over any street or crossing at a greater rate of speed than six miles per hour, or shall be run or used in the night without having a headlight or lamps lighted, or shall be run at any time without signals are given at short intervals by bell, horn or whistle."

Defendant pleaded the general issue to the whole complaint, and special pleas 2 and 3 to counts 1, 3, 4, and 5 of the complaint which are as follows:

(2) "Contributory negligence in this: Said intestate was struck by defendant's automobile on the bridge or viaduct in the city of Birmingham, Alabama, known as the Twenty-First Street Bridge. Said bridge or viaduct consists of a roadway about, to wit, 25 feet wide, for the use of vehicles and travelers on horseback, on either side of which are footways about, to wit, 4 feet wide, for the use of pedestrians; that said viaduct or bridge constitutes part of the principal line of travel for vehicles between the south side of the city of Birmingham, including the residential portion of said city known as South Highlands, and the principal business section of said city of Birmingham; that as many as, to wit, 1,000 automobiles daily cross said bridge or viaduct, using the portion thereof herein referred to as the roadway; that large numbers of other vehicles also daily pass over the roadway portion of said bridge or viaduct; that plaintiff's intestate stepped from one of the said pathways for the use of pedestrians onto said roadway for the use of vehicles, and undertook to pass across, of partially across, said roadway without looking in either direction for approaching vehicles. Defendant further says that it was not usual or customary for pedestrians to cross said roadway, and that plaintiff's intestate's negligence in undertaking to cross said roadway without looking out for approaching vehicles proximately contributed to his being struck by defendant's automobile, and of his sustaining the injuries which resulted in his death."

(3) "Contributory negligence in this: In that he negligently undertook to walk across or along a driveway constituting a part of a bridge or viaduct, known as the Twenty-First Street Bridge, in the city of Birmingham, Alabama, designed and used as a roadway for vehicles, without looking for approaching vehicles before stepping into said driveway, and without keeping a lookout for approaching vehicles after getting into said driveway, which negligence on the part of plaintiff's intestate proximately contributed to cause defendant's automobile to strike him and inflict the injuries from which he died."

Demurrers to the various counts of the complaint, and also to the special pleas, were overruled, and, on issue joined, the jury found a verdict for the plaintiff for $20,000. The court gave the following charges for the defendant:

(L) "I charge that, if you believe from the evidence that Lonnie Bell, the driver of defendant's automobile, was using reasonable care to look out for any persons who might get in the way of said automobile just at and prior to the time plaintiff's intestate was struck, and if you believe further that plaintiff's intestate stepped from the walkway of said bridge in front of the said moving automobile, and that the said Lonnie Bell did not have time, after said intestate stepped in the way of said automobile, to avoid hitting him, by the use of any reasonable means, then you cannot find a verdict for the plaintiff."

(9) "One using a public highway must exercise reasonable care in looking out for vehicles also using such highway. The failure to use such care is negligence; and, if you believe from the evidence that the deceased was guilty of contributory negligence proximately causing his injuries and death, plaintiff cannot recover for any simple negligence of the driver of the automobile."

(8) "The plaintiff would have a right to recover on account of the failure of the driver to blow the horn of the automobile, if you believe from the evidence there was such failure, under the counts of the complaint setting up such failure, only in the event that you are further reasonably satisfied from the evidence that such failure proximately caused the injuries of the deceased; and plaintiff could not recover on account of such failure in any event, if you further find from the evidence that plaintiff was guilty of contributory negligence as set up in defendant's pleas numbered 2 or 3, or either of them."

(G) "I charge that, if you find from the evidence that Lonnie Bell, at and just prior to the time defendant's automobile struck plaintiff's intestate, was negligent in not keeping a proper lookout for persons who might get in the way of said automobile, and if you find further that plaintiff's intestate was also guilty of negligence, just at and prior to the time he was injured, in not keeping a lookout for vehicles which might strike him, and such negligence proximately contributed to cause his injuries, then such contributory negligence on the part of plaintiff's intestate is a good defense in this cause, and you cannot find a verdict for plaintiff because of a mere failure of the said Lonnie Bell to discover plaintiff's intestate."

(K) "I charge you that, if you believe from the evidence that Lonnie Bell, at and shortly prior to the time plaintiff's intestate was struck, was operating defendant's automobile in a reasonably careful and prudent manner, and was using all reasonable means to look out for persons who might get in the way of said automobile, and to avoid hitting any one, and, if you believe further that said Lonnie Bell, by the use of such reasonable care, did not discover, and could not have discovered or seen, that plaintiff's intestate was leaving the walkway on said bridge, or was about to leave same and place himself in danger of being struck by said automobile, in time to avoid hitting said intestate, then you cannot find a verdict for the plaintiff."

(A) "I charge you, gentlemen of the jury, that, if you believe from the evidence that Lonnie Bell, the driver of defendant's automobile, was using reasonable care to look out for any persons who might get in the way of said automobile just at and prior to the time plaintiff's intestate was struck, and if you believe further that plaintiff's intestate stepped from the walkway of said bridge in front of said moving automobile, and that the said Lonnie Bell did not have time, after said intestate stepped in the way of said automobile, to avoid hitting him, by the use of all the means at his command, then you cannot find a verdict for the plaintiff."

The following charges were refused for the defendant:

Charges 1 to 5 were affirmative charges as to the whole complaint and the various counts.

(B) "I charge you that, if plaintiff's intestate, at the time he stepped from the walkway upon the bridge and started to cross the part of said bridge used by vehicles, could have seen the automobile which struck him, had he looked to see if any vehicles were approaching, and could have stopped, or stepped out of the way, in time to have avoided being struck by said automobile, and if said intestate, under these circumstances, failed to look for any such approaching vehicle, then he was guilty of negligence which contributed proximately to cause his injuries; and, if you believe from the evidence that such were the facts, then you must find a verdict for the defendant."

(C) "I charge you that a person driving or operating an automobile upon a public highway has the right to assume that pedestrians will not move themselves from a place of safety and place themselves in danger by crossing, or attempting to cross, in front of such moving automobile, where there is nothing to obstruct their view of automobiles, or to prevent them from seeing it as it approaches."

(E) "I charge you that, under the evidence in this case Lonnie Bell, the chauffeur, who was driving or operating defendant's car at and just prior to the time plaintiff's intestate was struck and injured, had a right to presume that plaintiff's intestate...

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