Bachelder v. Morgan

• Decision Date: 05 December 1912
• Citation: 179 Ala. 339,60 So. 815
• Parties: BACHELDER v. MORGAN.
• Court: Alabama Supreme Court

60 So. 815

179 Ala. 339

BACHELDER v. MORGAN.

Supreme Court of Alabama

December 5, 1912

Rehearing Denied Feb. 13, 1913.

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by James W. Morgan against H. V. Bachelder. From a judgment for plaintiff, defendant appeals. Affirmed.

The substance of the complaint sufficiently appears. The pleas referred to are as follows:

(2a) "Plaintiff was guilty of contributory negligence, which proximately contributed to his injuries, in this: The plaintiff, at the time and place he claims to have been injured, was going west on the south side of St. Francis street, at the intersection with St. Joseph street, at a time when it was very dark and rainy, having over him his opened umbrella, turned in such a way as to obstruct his view, when by the use of ordinary care he could have averted the injury in looking ahead."

(3a) "Contributory negligence, in that defendant avers that on the night when plaintiff alleges he was injured, defendant was coming south on St. Joseph street in his automobile, and stopped on the south side of the street railroad track running along St. Francis street, the rear of his automobile being over the south rail of said street car track, in order for some pedestrians to pass, after which he started his machine off very slowly, and had not advanced but a few feet before plaintiff was seen in front of him, holloing, with his umbrella raised, at which time defendant stopped his machine that it was very dark and rainy, and the lights of defendant's machine were lighted, and could be seen by a mere glance in the direction from which the automobile was approaching; and that plaintiff started off St. Joseph street, walking in front of defendant's automobile with his umbrella opened and raised over him, and turned in a direction to obstruct his view, so that he could not look out for or see approaching vehicles."

(4a) "Contributory negligence, in that plaintiff undertook to cross St. Joseph street, on the south side of St. Francis street, at the time and place he claims to have been injured with his umbrella open and over him in such a way as to obstruct his view, and did not use ordinary or reasonable diligence or care in crossing said street, or else would not have come in contact with defendant's automobile."

(5) "Contributory negligence, in that plaintiff, at the time and place he claims to have been injured, walked right in front of defendant's slowly moving automobile."

The demurrers to these pleas were that they were mere conclusions; that they failed to state facts sufficient to constitute contributory negligence; show no duty on plaintiff to act otherwise than he did; show no duty on the plaintiff to look up and down the streets for approaching automobiles; do not allege any facts to show that a reasonably prudent man would have been charged with notice that it was dangerous to cross said street at the time and place plaintiff attempted to cross it; and other grounds not necessary to be here set out.

The following are the assignments of error noted in the opinion:

(1) "The court erred in refusing to grant defendant's motion to require plaintiff to answer fully the question propounded to him as follows: 'Did you receive payment from your employers for the time you were away on account of your injuries? If so, what?' "

(5) "On cross-examination of plaintiff the following occurred: Defendant's counsel asked plaintiff this question: 'Were you, or not, paid anything by Pollock & Co., say, from August 12th to September 26th?' The answer was: 'I was paid.' Then this question: 'As a salary or otherwise?' And the answer was: 'I don't understand you.' And this question was asked: 'Did, or not, Pollock & Co. pay you anything in the way of salary or otherwise for the time which you missed from your employment?' Objection was sustained to the last question."

(6) "The court erred in sustaining objection to the following question: 'You stated, in answer to your interrogatory propounded to you, that Mr. Pollock made a donation to you. What was that donation?' "

(7) "Objection to the following question: 'Was that donation made by virtue of your employment?' "

(8) "Motion to rule out all of plaintiff's evidence after plaintiff had rested his case, which was refused."

(9) "Erred in refusing permission for defendant to take the stand in rebuttal of Gass' testimony, and then, after giving permission, limiting his examination to one question."

(10) "Refusing to grant defendant's motion to exclude all of plaintiff's evidence, after all the evidence had been introduced."

(11) "Refusing to give the following charge: Affirmative charge, with hypothesis not to find for the plaintiff."

(12) "The following charge: 'I charge you, gentlemen of the jury, if, after considering all the evidence, your minds are left in doubt as to what was the proximate cause of the injury complained of, you cannot find for the plaintiff.' "

(13) "Refusing to give the following charge: 'I charge you, gentlemen of the jury, if you are reasonably satisfied from all the evidence that, at the time and place plaintiff was injured, it was very dark and rainy, and the plaintiff had open and over him an umbrella turned in such a way as to obstruct his view, you cannot find for the plaintiff.' "

Inge & Armbrecht, of Mobile, and Goodwyn & McIntyre, of Montgomery, for appellant.

Gordon & Edington, of Mobile, for appellee.

DE GRAFFENRIED, J.

In this case the plaintiff, James W. Morgan, claims that on the night of August 11, 1911, he was knocked down by an automobile, which was, at the time, owned and driven by the defendant, H. V. Bachelder, and that he was thereby caused to suffer painful and serious injuries. The plaintiff further claims that his injuries were proximately caused by the negligent manner in which the defendant operated, ran, or controlled the automobile on the occasion named, and this suit was brought by the plaintiff to recover the damages which he claims he suffered on that account.

The defendant pleaded to the plaintiff's complaint, in addition to the plea of the general issue, pleas 2a, 3a, 4a, and 5, which pleas the reporter will set out in his summary of the facts of this case, and upon the issues thus made the case was tried. There was a jury trial and a verdict for $6,000, and from the judgment pronounced upon the verdict the defendant appeals.

The plaintiff received his injuries in the city of Mobile, at the point where St. Francis street, which runs east and west, is intersected by St. Joseph street, which runs north and south. The building occupied by the People's Bank is situated on the south side of St. Francis street and on the east side of St. Joseph street. Bienville Square, a public square or park, is situated on the south side of St. Francis street and on the west side of St. Joseph street. St. Joseph street, at this particular point, is 46 feet wide from the sidewalk immediately west of the People's Bank building to the sidewalk on the east side of Bienville Square. The plaintiff received his injuries while crossing the street at a regular street crossing for pedestrians, and while he was in the act of going across from the People's Bank building to Bienville Square. He received his injuries about 8 o'clock at night, and it was raining at the time; but whether the rain was then falling heavily or lightly is in dispute. There seems to have been a cab stand on St. Joseph street immediately east of the sidewalk which lies east of Bienville Square, and the plaintiff claims that about the time he reached this cab stand, or at least when he was within from 6 to 8 feet of it, the defendant ran his automobile against him, knocking him down, dislocating one of his shoulders, fracturing one of its important bones, and inflicting bruises upon other parts of his body. The automobile was 12 feet 5 inches in length, and the plaintiff testifies that after he was struck the automobile passed the point where he was struck about that distance.

The defendant, on the other hand, claims that he never struck the plaintiff at all. He claims that he had been to the Union Depot, and that when he reached the center of St. Francis street on his way south on St. Joseph street he saw a man and a woman leave Bienville Square and start east across the street to the People's Bank; that he stopped his automobile and waited for them to cross the street; that the point where he stopped the automobile was not over ten feet from the point where the plaintiff received his injuries; that when the man and the woman reached the sidewalk next to the People's Bank building he again started his automobile, and had only gone seven or eight feet when he heard the plaintiff scream; that he then looked, and saw the plaintiff not more than two or three feet in front of him; that he did not strike the plaintiff; that the plaintiff fell before the automobile reached him; that the automobile was traveling at a rate of speed not exceeding two miles per hour; and that he at once, upon hearing the plaintiff scream, stopped it.

While the defendant claims that it was raining heavily at the time--and this the plaintiff disputes--he testified that the lady to whom we have above referred had on a pink skirt, and if he could, when he claims to have stopped his automobile and waited for her and her male companion to cross the street, distinguish the color of her dress certainly there could have been nothing in the situation of the plaintiff which could have prevented the defendant, by the exercise of the precautions which the law required of him, from seeing the plaintiff, who crossed the same street, or attempted to cross it, at the same time the defendant claims the man and woman crossed...