Capital Motor Lines v. Gillette

• Decision Date: 26 November 1937
• Docket Number: 3 Div. 223
• Citation: 177 So. 881,235 Ala. 157
• Parties: CAPITAL MOTOR LINES v. GILLETTE.
• Court: Alabama Supreme Court

177 So. 881

235 Ala. 157

CAPITAL MOTOR LINES v. GILLETTE.

3 Div. 223

Supreme Court of Alabama

November 26, 1937

Rehearing Denied Jan. 13, 1938

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for damages by Mrs. Frank A. Gillette against Capital Motor Lines and Standard Oil Company. From a judgment for plaintiff and against defendant Capital Motor Lines, defendant Capital Motor Lines appeals.

Reversed and remanded.

John S Tilley and Hill, Hill, Whiting & Rives, all of Montgomery for appellant.

Thos. E. Martin and John B. Scott, both of Montgomery, for appellee.

BOULDIN Justice.

Action in damages for alleged personal injuries received in a collision of motor vehicles on a public highway.

Defendant Capital Motor Lines was operating a bus on Montgomery and Mobile Highway, as a common carrier of passengers for hire.

Plaintiff, Mrs. Frank A. Gillette, was a passenger on this bus, going from Montgomery toward Mobile. At a point a few miles north of Fort Deposit, another accident had occurred, wherein an automobile had catapulted from the highway. Some cars had stopped near the scene of the accident, and several men were standing along the railing to the right of the paved portion of the highway as the passenger bus approached. A truck of Standard Oil Company, of Kentucky, headed toward Montgomery, had stopped on the other side, occupying some portion of the paved highway. The driver of the passenger bus slowed down and came to a stop after passing some ten to twenty feet beyond this Standard Oil truck. The bus stopped on the pavement occupying some eight feet of the pavement, nineteen feet in width. The driver of the bus, on coming to a stop, called to the bystanders to ask if any one was hurt, and could he be of assistance.

Presently another truck, driven by one Leonard, and headed in the same direction as the bus, collided slightly with the Standard Oil Company truck on its left, and then with the bus, on its right. The extended body of the Leonard truck crashed into the rear-left side of the bus, shooting the bus forward some twenty feet. This outline of the facts, not in substantial dispute, suffices as a sufficient introduction to the consideration of the questions presented on appeal.

The case went to the jury on counts 5, 6, and 7 of the complaint. Appellant assigns for error the refusal of the affirmative charge on the entire case, and like charges addressed to the several counts. These assignments are earnestly pressed in argument.

Count 5 charges that the driver of the bus "negligently and unlawfully parked or left standing the said bus *** in such manner that less than fifteen feet of the main traveled portion of the highway opposite the said parked or standing bus was left for the free passage of other vehicles," and plaintiff's injuries were proximately caused by such negligence.

This count alleges a violation of the "Law of the Road," as written in section 70(a) of the Highway Code. Gen.Acts 1927, p. 375. A definite knowledge of this statute on the part of every motorist is so important, in view of daily experience, that we here set it out.

"Section 70. Stopping on Highways.

"(a) No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway; provided, in no event shall any person park or leave standing any vehicle, whether attended, or unattended, upon any highway unless a clear and unobstructed width of not less than fifteen feet upon the main traveled portion of said highway opposite such standing vehicle shall be left for free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of 200 feet in each direction upon such highway."

Appellant earnestly insists that the evidence makes no case for the jury under this statute, because the evidence without conflict shows the bus was stopped temporarily for a laudable purpose, the rendering of emergency assistance to persons probably in distress; that the driver was acting in the spirit of the Good Samaritan.

The evidence of the time the bus stood still on the highway varies, from thirty seconds to two or three minutes. That it was stopped temporarily to make inquiry, and offer help, if needed, we think apparent without reasonable inference to the contrary. We come then to the inquiry whether, as matter of law, stopping the bus on the highway as it was is without the statute designed to keep an open highway for the protection of the public. In this case obviously there was a duty to passengers, a first duty to exercise the high degree of care required of common carriers of passengers for hire.

The count in question further charges that by reason of the presence of the other standing truck, the free passage of the highway was blocked by stopping the bus at that point. Evidence tends to support this averment and to show a clearance could have been provided by stopping further on.

While these incidents are of moment in dealing with an affirmative charge, in the instant case, we deem it of importance to clearly define the law applicable to stopping vehicles on the highways in general, even temporarily.

The statute is headed "Stopping on Highways."

To "park or leave standing," "attended or unattended," is forbidden. That one is in the car, and at the wheel, is no excuse.

Section 63 deals with bringing a moving car to a stop, requiring specified signals for the protection of those following near.

Section 70(a) intends to keep an open highway, free of standing cars on the paved road, or, at all events, an open zone of fifteen feet. A passing vehicle may be expected at any moment, as this case sadly demonstrates. The law aims to conserve life and limb by keeping the road open as defined.

Subdivision (c) of same section deals with temporary stops in these words: "(c) The provisions of this section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such vehicle in such position."

Quite clearly, even in case of a blowout or other car trouble necessitating a temporary stop, subdivision (a) must be complied with, if it can reasonably be done.

Appellant strongly relies on Newell Contracting Co. v. Berry, 223 Ala. 109, 134 So. 870, 872, wherein this court quoted with approval authority saying: "To 'park' means something more than a mere temporary or momentary stoppage on the road for a necessary purpose."

This must be read in connection with what follows, namely: "If the truck was allowed to remain in the road for some temporary purpose, or due to a breakdown, without the opportunity to remove it, and it was not a voluntary act of the one in charge of it, or that it was not done by one with due authority, the facts are presumed to be peculiarly known to defendant, and it should have produced them, otherwise the presumption of such matters is indulged against defendant."

In Newell Contracting Co. v. Berry, 223 Ala. 111, 134 So. 868, a companion case, decided at the same time, this court called attention to subdivision (c),§ 70, especially the duty to provide lights, & c.

To take a temporary stopping without our statute, it must be "for a necessary purpose," and under such conditions that "it is impossible *** to avoid leaving such vehicle in such position," that is, occupying traveled portion of the highway, or not leaving the clearance declared in section 70(a). "Impossible" is to be construed in a reasonable practical sense.

The Law of the Road in Alabama is: When stopping a motor vehicle on a highway, voluntarily or from necessity, no matter how long it is expected to remain standing, the driver should turn out, and provide a clearance of fifteen feet, if practical to do so. He should not stop his car on the highway at a point where this cannot be done except for reasonable cause. In the latter case, he should get out of such position as soon as practical. Chambers v. Cox, 222 Ala. 1, 130 So. 416.

Dealing with the case in hand, the evidence made a case for the jury on this issue. The humane law, the law of the Good Samaritan to use the terminology of the briefs, must not disregard concurrent duty to others, passengers in this case. The presence of other cars, and several...