Barbour v. Shebor

• Decision Date: 16 January 1912
• Citation: 58 So. 276,177 Ala. 304
• Parties: BARBOUR v. SHEBOR.
• Court: Alabama Supreme Court

58 So. 276

177 Ala. 304

BARBOUR v. SHEBOR.

Supreme Court of Alabama

January 16, 1912

Rehearing Denied April 25, 1912.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Ben Shebor against W. C. Barbour for personal injury. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Anderson and Sayre, JJ., dissenting in part.

Count B is as follows: "Plaintiff claims of the defendant the sum of $15,000 as damages, for that, whereas, heretofore, and on, to wit, the 4th day of March, 1910, the defendant was running and operating an automobile upon the streets of Birmingham, Jefferson county, Alabama, when the same ran against plaintiff, a pedestrian, who was crossing said street, and plaintiff was thereby greatly injured, bruised and mangled. [ Here follows catalogue of injuries, which are alleged to be permanent, and the damages resulting therefrom.] And plaintiff avers that his said injuries and damages were proximately caused by reason of, and as a direct consequence of, the wanton acts of the defendant's servant or agent while acting within the line and scope of his authority as such." The third plea sets up contributory negligence, in that plaintiff negligently attempted to cross said street without looking for said automobile, which was then and there approaching in rapid motion on said street, and was struck by said automobile and injured, although he knew automobiles were likely to pass on said street at any moment. Count A was similar in all respects to count B, except that it alleged simple negligence. According to the record, count 3 of the complaint was withdrawn. Plea 5 was a plea of contributory negligence alleging that plaintiff well knew that automobiles passed along said street at frequent intervals at a rapid rate of speed. Nevertheless, with such knowledge, plaintiff voluntarily attempted to cross said street in front of and in dangerous proximity to an automobile, then and there approaching in dangerous proximity to him, without looking for the said car, and was struck by said car. Plea 6 was of contributory negligence, alleging that plaintiff had looked and had seen the said automobile approaching him on said street in rapid motion, and knowing that, if said automobile struck him, great bodily injury would result to him nevertheless plaintiff, with such knowledge, and while seeing said automobile, voluntarily stepped immediately in front of said rapidly moving automobile, and was struck and injured.

The following charges were refused to the defendant: (1) "The mere fact, if it be a fact, that the defendant's automobile was being operated along Eleventh avenue at a negligent rate of speed, does not entitle the plaintiff to recover against the defendant in this case." (4) Affirmative charge as to count B. (6) "If you believe the evidence, you cannot award the plaintiff any damages for the purpose of punishing the defendant." (7) "If you believe, from the evidence that plaintiff on the occasion complained of acted in a manner in which an ordinarily prudent person would not have acted under the same circumstances, and his said conduct was the proximate cause of his injuries, then you must find for the defendant." (10) "If you believe the evidence in this case, the plaintiff was guilty of negligence." (11) "The court charges you that it was the plaintiff's duty, before crossing Eleventh avenue at the intersection of Fourteenth street, to look for vehicles or automobiles on said Eleventh avenue; and the court further charges you that, if you believe from the evidence that plaintiff did see defendant's automobile approaching him on Eleventh avenue, it was his duty to use reasonable care to prevent a collision with said automobile." (12) "If you believe, from the evidence, that the defendant's automobile at the time of the accident was being operated at a greater rate of speed than that fixed by law, still the court charges you that you cannot find for the plaintiff, if you further believe from the evidence that plaintiff saw the defendant's automobile approaching him in rapid motion, and thereafter negligently went in front of same, and that his so doing was the proximate cause of the alleged injury." (13) "If you believe from the evidence that the plaintiff was guilty of the slightest negligence which proximately contributed to his alleged injuries in attempting to cross Eleventh avenue in front of defendant's automobile after seeing the same, if you believe from the evidence that he did see it coming, and while it was approaching in dangerous proximity to him, then your verdict must be for the defendant." (14) "If you believe from the evidence that plaintiff was negligent in crossing or attempting to cross Eleventh avenue in front of and in dangerous proximity to the defendant's said automobile, and that said negligence proximately contributed even in the slightest degree to the injury received by him by being struck by defendant's said automobile on Eleventh avenue, then the court charges you that plaintiff cannot recover any damages on account of the mere failure of the person in charge of the defendant's automobile to keep a proper lookout for plaintiff, if you believe a proper lookout was not kept, nor on account of a mere failure of the person in charge of said automobile to sound the gong of his said car, if you believe no gong was sounded."

Tillman, Bradley & Morrow and Charles E. Rice, all of Birmingham, for appellant.

Bondurant & Smith, of Birmingham, for appellee.

SIMPSON J.

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