Baker v. Baker
| Decision Date | 21 November 1929 |
| Docket Number | 2 Div. 949. |
| Parties | BAKER v. BAKER. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Dallas County; Thomas E. Knight, Judge.
Action by Belzora Baker against Lillian H. Baker. From a judgment for plaintiff, defendant appeals. Affirmed.
Arthur M. Pitts, of Selma, and Coleman, Coleman, Spain & Stewart, of Birmingham, for appellant.
Gamble & Smith and Mallory, Mallory & Lapsley, all of Selma, for appellee.
This cause is considered in connection with Baker v. Elebash (Ala. Sup.) 124 So. 739, and Baker v. Rainer (Ala Sup.) 124 So. 737, similar cases arising from the same accident. On the question of negligence vel non on the part of defendant the evidence is substantially the same. We reach the conclusion the evidence supports the finding of negligence by the jury.
It appears the defendant, driving her own car, a Lincoln sedan along the Selma-Montgomery highway, on a bright day, lost control of the car. It zigzagged, left the roadway encountered an embankment, and overturned, injuring the occupants.
On the testimony of the eyewitness, Rudolph, the initial negligence may be laid to driving the car at too high speed to maintain control on a curve, or to negligently allowing the car to swing too far to the right on entering the curve at high speed, thus leaving the hard surface intended for travel, and encountering soft, sloping ground, or to negligence in turning the car too violently to the left, then to the right. One phase of evidence in this record is to the effect that during this zigzag movement the car was speeded up.
This suggests the inadvertent bearing down on the gas while trying to right the car. So far as appears the car was running well, and responded to the control devices.
In the absence of obstructions, defect in the road or car, or other supervening cause, the wreck of a car under the circumstances disclosed readily warrants an inference of negligence in operation.
Without conflict, the evidence discloses that this plaintiff invited a party of friends to take a trip from Selma to and beyond Montgomery; that she and her mother, the defendant, entered the mother's car and gathered up the party. The plaintiff was driving and continued to drive for some distance out of Selma. Then at the request of her mother she relinquished the wheel, and exchanged places on the front seat with her mother, who drove thereafter.
On these facts plaintiff was due the care and protection of a guest, not of a mere licensee. To transport the party, including plaintiff, was the purpose of driving the car at the time; not a case of one on a different errand, who merely permits another to get aboard, as in Crider v. Yolande Coal & Coke Co., 206 Ala. 71, 89 So. 285.
Defendant's charges Nos. 2 and 3 were therefore refused without error.
"Passenger guest" as used in the complaint is not an inapt expression of the relation in such case. "Passenger" indicates one taking passage, and "Guest" negatives any relation of carrier and passenger for hire. There was, therefore, no departure.
The doctrine of joint adventure as a basis for contributory negligence has no application to the case here presented. Whiddon v. Malone (Ala. Sup.) 124 So. 516.
The question propounded to witness Rudolph: "Was its speed cut down as it turned this curve?" called for a statement of fact based on the witness' observation of the movement of the car, not a mere conclusion as to the motions of the driver at the wheel.
Charge 9 refused to defendant is confusing and misleading, if not self-contradictory.
"Negligence" is a failure of duty, a want of care, failure to exercise that degree of care required by law in a given case. It may result from omission or commission. An "active wrong" is not necessary. Failure of duty, negligence, may be due either to incompetence or inattention. The negligence charged in this complaint covers both. The charge does not deal with contributory negligence or assumption of risk in riding with a known incompetent driver.
Refused charge 8 is subject to several objections.
Contributory negligence in failure to protest against the high rate of speed is imputed because of opportunity to know the dangerous rate of speed not to the fact of knowledge. It implies a duty on the guest to keep a watch on the driver, the mother in this case. The law imposes no such duty in the absence of facts suggesting a necessity to keep watch to one of ordinary care. Birmingham Sou. R. Co. v. Harrison, 203 Ala. 284, 82 So. 534. There was evidence that plaintiff was not observing the speed of the car or the approach to a curve.
The charge omits any finding that the failure to protest proximately contributed to the injury; calls for a verdict for defendan...
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