Birmingham Stove & Range Co. v. Vanderford

• Citation: 116 So. 334,217 Ala. 342
• Decision Date: 29 March 1928
• Docket Number: 6 Div. 954
• Parties: BIRMINGHAM STOVE & RANGE CO. v. VANDERFORD.
• Court: Alabama Supreme Court

116 So. 334

217 Ala. 342

BIRMINGHAM STOVE & RANGE CO. v. VANDERFORD.

6 Div. 954

Supreme Court of Alabama

March 29, 1928

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Action for damages by J.A. Vanderford against the Birmingham Stove &amp Range Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The refusal of requested instructions covered by those given is not error.

Count A is as follows:

"Count A. Plaintiff claims of defendant the sum of $25,000 as damages for that on, to wit, the 26th day of June 1926, plaintiff was in the employment of the city of Bessemer, as policeman, and as such policeman it was his duty to go to various parts of the city of Bessemer; and on said date he had gone to Thirty-Second street, in said city of Bessemer, on a motorcycle belonging to the city of Bessemer, and on said date, while he was proceeding along the public highway of the city of Bessemer, to wit, Clarendon avenue, on said business for the city, the motorcycle on which he was riding came in contact with an automobile truck operated by a servant, agent, or employee of defendant, acting within the line and scope of the duty of his employment, as such agent of the defendant, the collision occurring at or near the intersection of Clarendon avenue and Twenty-Fourth street in the city of Bessemer, and as the result of said collision, plaintiff's body was bruised, mutilated, and injured; he was bruised and injured in his face, head, and other parts of his body; his eye was greatly bruised and injured. His knees were seriously bruised and crippled; his ribs were broken, and he was seriously bruised internally; was made sick and sore; has suffered and is suffering excruciating mental pain and anguish, and will be disabled and incapacitated for the remainder of his life; his health and physical stamina were permanently impaired, and he has been permanently injured in the various parts of his body, hence this suit.

"Plaintiff further avers that all of his injuries and damages above set forth were proximately caused by the negligence of the servant, agent, or employee of defendant then and there in charge of said truck for the defendant and acting within the line and scope of his duty in the employment of the defendant, in this, that said servant, agent, or employee negligently operated said automobile truck at the time and place of collision."

The defendant demurred to said count of the complaint on the following grounds:

"1. The complaint is vague, indefinite, and uncertain.

"2. The negligence of the defendant is not set forth with sufficient certainty.

"3. It is not averred wherein the defendant owed the plaintiff any duty or care.

"4. There is no causal connection beween the injury and the alleged negligence of the defendant.

"5. The place where the alleged injury is said to have occurred is not described with sufficient certainty.

"6. From aught that appears from the complaint, plaintiff's injury was caused by his own negligence.

"(a) No facts are averred which show a duty on this defendant not to allow plaintiff to collide with said truck.

"(b) The duty alleged is greater than that imposed by law.

"(c) It does not appear that said servant was acting within the line or scope of his employment by the defendant.

"(d) It does not appear with sufficient certainty in what the negligence consisted.

"(e) It does not appear that said injuries were the proximate result of the negligence complained of.

"(f) Said count attempts to state a wanton injury and is not sufficient in that respect.

"(g) Said count is repugnant and inconsistent, in that, same attempts to state a case of wanton injury and states only a negligent injury."

Charges G and H, refused to defendant, are as follows:

"G. At intersections of public highways, the vehicle approaching on the right of the other vehicle has the right of way.

"H. Under the evidence in this case you should find that defendant's truck approached the intersection of Clarendon avenue and Twenty-Fourth street on the right of plaintiff's motorcycle, and I charge you that when such is the case, the vehicle so approaching on the right has the right of way over the crossing."

Nesbit & Sadler, of Birmingham, and Huey & Welch and W.G. Stone, all of Bessemer, for appellant.

Mathews & Mathews, of Bessemer, and Black & Fort, of Birmingham, for appellee.

THOMAS J.

The trial was had upon count A, added by way of amendment. The place of the alleged injury is sufficiently indicated. Gray v. Cooper, 216 Ala. 684, 114 So. 139; Tillery v. Walker, 216 Ala. 676, 114 So. 137; Ruffin C. & T. Co. v. Rich, 214 Ala. 633, 108 So. 596. The averment that said servant, agent, or employee negligently operated said automobile truck at the time and place of collision does not offend the rule declared for good pleading in complaints. Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; Tennessee Coal, Iron & R. Co. v. Moore, 194 Ala. 134, 69 So. 540. There was no error in overruling demurrer assigned to count A, for simple negligence.

Affirmative instructions A, 1, and 2 were requested, and being refused are assigned as error. The authorities are collected in McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135, as to when affirmative instruction should be given. And a cause should not be withdrawn from the jury unless the conclusion follows, as a matter of law, against recovery upon any reasonable view which can be taken of the facts which the evidence tends to establish. A statement of the rule, approved by this court, is, when a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury; and it "is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court." Grand Trunk R. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485, 489. This statement of the rule has been approved and followed in this jurisdiction. Vaughn v. Dwight Mfg. Co., 206 Ala. 552, 91 So. 77; Tenn. Mill & Feed Co. v. Giles, 211 Ala. 44, 99 So. 84; Birmingham So. R. Co. v. Harrison, 203 Ala. 284, 291, 82 So. 534; White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479. Affirmative instructions were properly refused.

The conduct of the parties operating their machines in approach and at the intersection of the thoroughfares was subject to consideration by the jury. The vehicle first at the intersection or crossing, without negligence, has the right of way, to be exercised with a due regard to others and the conditions that obtain. Whatley v. Nesbitt, 204 Ala. 334, 85 So. 550. The rule of the road, and passage to the right, the precedence given the respective vehicles duly passing, the sudden stopping, if such was the case with or without signals, whether the drivers slowed down, or at what speed they approached the crossing, and whether with respective machines under control, the signals of approach and for stopping, whether duly given, respective rates of speed under the ordinances, points of visibility of each machine, as they approached the corner, whether each driver saw the other, if so, when and where, as he proceeded immediately before the collision, were material facts for the jury as shedding light upon the proximate or contributing cause of the injury. L. Hammel Dry Goods Co. v. Hinton, 216 Ala. 127, 112 So. 638; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13. In each case the actions of the parties or agents are to be judged by the certain circumstances and material facts entering therein as a part of the res gestae or quo modo of the injury.

It should be further observed that if an actor is suddenly imperiled by the wrong, unwarned, and unexpected act of another, he is not required to exercise all the presence of mind of a prudent and careful man not so circumstanced. The law makes allowances for them, and leaves the circumstances of their conduct to the jury. Alabama Co. v. Sanders, 202 Ala. 295, 297, 80 So. 360; Richmond & Danville Ry. Co. v. Farmer, 97 Ala. 141, 12 So. 86; Louisville & N.R.R. Co. v. Thornton, 117 Ala. 274, 282, 23 So. 778; Cook v. Central R.R. & Banking Co., 67 Ala. 533. This rule does not apply to one who wrongfully and voluntarily puts himself in such a dangerous position. However, ordinarily, such questions are held to be for the jury. Alabama Co. v. Sanders, 202 Ala. 295, 297, 80 So. 360; McCauley v. Tennessee Coal, Iron & R. Co., 93 Ala. 357, 9 So. 611; Birmingham Ry. Co. v. Fox, 174 Ala. 657, 56 So. 1013.

The further question of subsequent negligence vel non of the driver of the truck, after observing plaintiff's approach, in turning as he did into the street and suddenly stopping where and as he did (according to plaintiff's evidence), was for consideration by the jury. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Louisville & N.R.R. Co. v. Calvert, Adm'r, 172 Ala. 597, 55 So. 812; Louisville & N.R.R. Co. v. Jenkins, 196 Ala. 136, 142, 72 So. 68; Shirley v. Southern Ry. Co., 198 Ala. 102, 73 So. 430; Alabama Great Southern R. Co. v. Sanders, 203 Ala. 57, 82 So. 17; Southern Ry. Co. v. Gantt, 210 Ala. 383, 98 So. 192; Tenn. Mill & F. Co. v. Giles, 211 Ala. 44, 99 So. 84.

Plaintiff as a witness, testified, among other things, that he passed some cars on Clarendon avenue and then blew his whistle; that the "traffic was very heavy there" in the use of that street; that when he first saw the truck, he (plaintiff) was driving about 30 miles an hour, and began applying brakes, and "thought" the driver of the truck "was going on"; that he was cutting the corner, and "stopped on me (witness)" without warning, and (I) "was too near on him...