Francis v. Imperial Sanitary Laundry & Dry Cleaning Co.

• Citation: 241 Ala. 327,2 So.2d 388
• Decision Date: 15 May 1941
• Docket Number: 1 Div. 124.
• Court: Supreme Court of Alabama
• Parties: FRANCIS v. IMPERIAL SANITARY LAUNDRY & DRY CLEANING CO.

2 So.2d 388

241 Ala. 327

FRANCIS v. IMPERIAL SANITARY LAUNDRY & DRY CLEANING CO.

1 Div. 124.

Supreme Court of Alabama

May 15, 1941

Rehearing Denied June 5, 1941.

Appeal from Circuit Court, Mobile County; D. H. Edington Judge.

The following charges were refused to plaintiff:

"7. The Court charges the jury that where a driver of an automobile has an unobstructed view of a group of people on the side of the highway ahead of him, he is charged with the knowledge that such people may enter the highway in the path of his automobile and is under a duty or high degree of care to drive so that he is able to control his automobile at all times."

"12. The court charges the jury that wantonness is the doing of an act intentionally or under circumstances that one is conscious, or should, by the exercise of reasonable diligence, have been conscious of the probability that another or others would be injured thereby, and while having the elements of negligence, it goes further than negligence."

"15. The court charges the jury that it is the duty of a motorist to give timely warning of his approach to other users of the street or highway, and if you are reasonably satisfied from the evidence that Patten Platt, while driving an automobile truck of defendant, within the line and scope of his employment by defendant, failed to give such warning, and that his failure so to do was the proximate cause of the injury and death of John Gonzalez, then you must find for the plaintiff."

"20. The court charges the jury that if you are reasonably satisfied from the evidence that Patten Platt was driving defendant's automobile truck within the line and scope of his employment by defendant, at a rate of speed greater than allowed by law, he is guilty of negligence."

"22. The court charges the jury that if you are reasonably satisfied from the evidence that defendant's agent or servant violated a traffic regulation, and by reason thereof John Gonzalez sustained injuries proximately causing his death, then you should find for the plaintiff, if you further find that the plaintiff was in the exercise of reasonable care at the time of the accident."

Doris Van Aller and Charles Hoffman, both of Mobile, for appellant.

Smith & Johnston, of Mobile, for appellee.

FOSTER, Justice.

This is an action for the death of plaintiff's intestate who was riding a bicycle down a public highway and had a collision with a truck of defendant approaching in the opposite direction. There was a verdict and judgment for defendant.

Count 1 of the complaint was in simple negligence, and states that both were using the public highway, and that defendant so negligently operated the truck that as a proximate consequence it ran against the bicycle on which intestate was riding. The special pleas were to this count, and the first question for our consideration is the ruling on demurrer to them. They set up contributory negligence. Plea 2 contains less detail than the others to support the allegation of negligence, which is the basis of the claim of insufficiency. It alleges in substance that intestate, with knowledge that defendant's truck was approaching him on the highway negligently proceeded to ride his bicycle down said road at a high rate of speed in the direction of and into the side of said truck and as a proximate consequence of such negligence the collision occurred.

Such a plea is sufficient if it alleges facts which show a duty by plaintiff to defendant, a negligent breach of that duty in a particular manner, as a proximate contributory cause of the injury, when such particularity of manner accompanied with averment of negligence is sufficient to that end. 45 Corpus Juris 1121.

Plea 2 in the instant case is not unlike the third plea treated in Brown v. St. Louis & S. F. R. R. Co., 171 Ala. 310, 55 So. 107; nor the fourteenth plea in Harrison v. Mobile L. & R. R. Co., 233 Ala. 393, 171 So. 742. It shows a duty to defendant, in that they were both using the same highway at the same time. Each owes the other the duty to exercise reasonable care not to injure him after he is aware of his presence, as well as to discover his presence. Cooper v. Agee, 222 Ala. 334, 132 So. 173; Harbin v. Moore, 234 Ala. 266, 175 So. 264.

The particular matter of negligence in this plea is the allegation that intestate was riding the bicycle at a high rate of speed toward and into the truck knowing of its approach on the highway. This was sufficient to meet all requirements of good pleading.

Seventh to Twenty-Third Assignments,

Inclusive.

These assignments relate to proceedings on the examination of witnesses. As to some, there was no proper reservation of exception, others relate to immaterial evidence offered, and as to all, a careful study of them shows no reversible error, but there is no important legal question in connection with any of them which needs a discussion. The statements in the record in connection with each show clearly the answer to appellant's contention without an analysis of them by us.

Twenty-Fourth Assignment.

This assignment relates to refused charge No. 7. It is argumentative and also declares the statement of a duty which the law does not impose. There is no such principle of law known to us as there stated.

Twenty-Fifth Assignment.

This relates to refused charge No. 12. This charge is materially different from that considered in Caruth v. Sparkman, 226 Ala. 594, 147 So. 884, relied on by appellant. This charge declares wantonness to be shown if one is conscious or should by the exercise of reasonable diligence have been conscious of the probability that another would be injured by his conduct, and then does the act causing the injury. Whereas in the case cited, the charge predicated wantonness on consciousness of the danger to others, without the alternative noted above. The failure to exercise reasonable diligence to discover danger is at most negligence. Wantonness contains the element of consciousness of probable danger as an existing fact, not as it ought by reasonable diligence to have been. Allison C. & T. Co. v. Davis, 221 Ala. 334, 129 So. 9; Alabama Power Co. v. Gooch, 221 Ala. 325, 128 So. 793; Birmingham Electric Co. v. Turner, Ala.Sup., 1 So.2d 299.

Twenty-Sixth Assignment.

This relates to refused charge No. 15. There is no such duty required by law as that here set out. Whether there was a duty to blow the horn depended upon whether due care so required under the circumstances, and that was a question for the jury. Schrimsher v. Carroll, 225 Ala. 188, 142 So. 547.

Moreover, the charge declared a right to recover if the truck driver's failure to blow the horn was the proximate cause of the injury, though it may not have been the sole proximate cause, and though the negligence of intestate might also have been a proximate contributing cause. It therefore pretermitted consideration of contributory negligence.

Twenty-Seventh Assignment.

Refused charge No. 20. Reliance is had on Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471, and Ashley v. McMurray, 222 Ala. 32, 130 So. 401. But we observe that while it may be negligence to violate a statute or ordinance, it is not actionable unless it causes injury to one for whose benefit it was enacted. McCaleb v. Reed, 225 Ala. 564, 144 So. 28; City of Birmingham v. Blood, 228 Ala. 218, 153 So. 430.

Moreover, a charge which merely states an abstract proposition of law without instructing the jury its effect upon the issues in the case on the trial may be refused without error. Johnson v. Louisville & Nashville R. R. Co., 220 Ala. 649, 127 So. 216; Ridgely Operating Co. v. White, 227 Ala. 459(19), 150 So. 693; Streetman v. Bowdon, 239 Ala. 359, 194 So. 831.

Twenty-Eighth Assignment.

Refused charge No. 22. It is not every traffic violation which causes the death of another who is without contributory negligence which is actionable. It depends upon the nature and purpose of the regulation and whether it was enacted for the benefit of decedent individually or as a member of a class. ...