Birmingham Southern R. Co. v. Harrison
Decision Date | 16 January 1919 |
Docket Number | 6 Div. 767 |
Citation | 82 So. 534,203 Ala. 284 |
Parties | BIRMINGHAM SOUTHERN R. CO. v. HARRISON. |
Court | Alabama Supreme Court |
On Rehearing, April 10, 1919
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
Action by Mrs. Mary E. Harrison, as administratrix of the estate of J.F. Mackey, against the Birmingham Southern Railroad Company for damages for the death of her intestate in a collision between an automobile in which intestate was riding and an engine of the defendant. Judgment for the plaintiff in the sum of $22,500, and defendant appeals. Affirmed.
The pleadings and the facts sufficiently appear from the opinion of the court.
The following are the charges referred to in the opinion:
Defendant's given charge 10:
I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence that Wetzel negligently failed to stop, look, and listen for the approach of trains at a place where the approach of the train could be seen or heard, and without stopping, looking, and listening negligently drove his jitney onto the railroad track, and that such negligence on the part of Wetzel was the sole proximate cause of the death of plaintiff's intestate then your verdict must be for the defendant.
Plaintiff's given charges:
Defendant's refused charges:
Percy, Benners & Burr, of Birmingham, for appellant.
W.A. Denson, of Birmingham, for appellee.
The suit is for personal injury under the Homicide Act.Code, § 2486. The complaint contains counts for simple negligence, for subsequent negligence, and for wanton, willful, or intentional conduct.
Defendant pleaded the general issue to the several counts and special pleas 2 and 3 to the first count. The second plea sought to allege contributory negligence on the part of plaintiff's intestate in his riding in an automobile with a driver by him known to be careless, reckless, and incompetent, and in that said driver negligently failed to stop, look, and listen before crossing the railroad track of the defendant at the time of the injury in question. The third plea sought to allege contributory negligence in plaintiff's failing to warn the driver of the automobile of the approach of the train, or in failing to make protest to said driver, "or to make such other effort which she [he] reasonably could have made to avoid being carried onto the track," etc.
Among other grounds of demurrer to plea 2, it was urged that the carelessness, recklessness, or incompetency of said Wetzel (the driver), which was averred to have been known to the intestate, was not averred to be that carelessness, recklessness, or incompetency which proximately contributed to intestate's death. In support of the sufficiency of this plea is cited Bresee v. Los Angeles Tract. Co., 149 Cal. 131, 85 P. 152, 154, 5 L.R.A. (N.S.) 1059; Lawrence v. Sioux City, 172 Iowa, 320, 154 N.W. 494; Meenagh v. Buckmaster, 26 A.D. 451, 50 N.Y.Supp. 85.
In the Bresee Case the Justice said:
In Lawrence's Case, supra, a witness was permitted to testify (without objection, so far as the record discloses) that intestate had stated, a short while before the accident, that she had ridden with John Knott, the driver at the time of the accident, and that at times she was afraid to ride with him. The rule, however, was adhered to that, when the decedent had nothing to do with the direction in which the automobile was moving, or the route over which it passed, or the operation of the machine, and did not in fact assume or undertake in any manner to exercise control over the driver or the car, the negligence of the driver in operating the car before and at the time of the collision could not be imputed to the occupants of the car.
In the case of Meenagh v. Buckmaster, supra, the holding was that the occupant of an automobile is not absolved from the duty to look out, as far as possible, for his own safety, and if thrown out by running on a pile of rubbish negligently left in the highway, he cannot recover for his injuries sustained of the person who placed the rubbish on the highway, if it is further averred and proven that the driver was so intoxicated, and was driving so recklessly, as that the plaintiff should have perceived it, and the injured man failed to remonstrate or to do anything to avoid the danger but continued to ride with such driver. When the facts of Meenagh's...
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