Government Street Lumber Co. v. Ollinger

• Decision Date: 21 February 1922
• Docket Number: 1 Div. 452.
• Citation: 18 Ala.App. 518,94 So. 177
• Parties: GOVERNMENT STREET LUMBER CO. v. OLLINGER.
• Court: Alabama Court of Appeals

94 So. 177

18 Ala.App. 518

GOVERNMENT STREET LUMBER CO. v. OLLINGER.

1 Div. 452.

Court of Appeals of Alabama

February 21, 1922

Rehearing Denied May 16, 1922.

Appeal from Circuit Court, Mobile County; Joel W. Golesby, Judge.

Action by Charles G. Ollinger against the Government Street Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Certiorari denied 94 So. 922.

Where two automobiles were traveling along a public road in the same direction, and the rear car collided with the forward one as it turned to the left to leave the highway, a charge that the driver of the rear car was under duty to be duly watchful of defendant's automobile, and to be prepared for any change in its direction which might have reasonably been anticipated, held properly refused as requiring too high a degree of care.

The complaint reads as follows:

"Plaintiff claims of the defendant $1,000 for that, on, to wit, May 21, 1920, the plaintiff's automobile was being driven east on Old Shell road, in Mobile county, Ala., when the defendant's automobile, being operated by a duly authorized agent acting within the line and scope of his employment, negligently drove the said automobile across the said road, causing the plaintiff's automobile to collide with the defendant's automobile and with an oak tree along the side of the road, and as a proximate result of said negligence the plaintiff's automobile was badly damaged and broken, the crank case to the said automobile was broken, the front axle was badly bent, the chassis was badly bent and twisted, the wheels were damaged, the fenders on said automobile were crushed and bent, the hood to said automobile was badly bent, the bumper was broken and bent, the running board was destroyed, and said automobile was otherwise injured, all to plaintiff's damage as aforesaid."

Defendant's plea A reads as follows:

"And for further plea in its behalf the defendant says that the driver of plaintiff's automobile was himself guilty of negligence which proximately contributed to the damages to plaintiff's automobile, in this: Plaintiff's automobile and defendant's automobile were proceeding in the same direction upon Old Shell road, in Mobile county, Ala., the defendant's automobile being ahead of plaintiff's automobile; that preparatory to turning into a side road entering Old Shell road on the left-and side thereof, the driver of defendant's automobile held out his left hand and sounded his horn, as signals that he was going to turn out of the public road into said side road; that thereupon the driver of defendant's automobile did start turning out of Old Shell road into said side road, without knowing of the presence of plaintiff's automobile, or that the driver of plaintiff's automobile intended to pass him, and at said time the driver of plaintiff's automobile did negligently attempt to pass defendant's automobile, to the left-hand side thereof, without making known to the driver of defendant's automobile, by signal or otherwise, that he intended to pass defendant's automobile, and, as a proximate result thereof, the two automobiles collided."

Plea C reads:

"And for further plea in its behalf to the complaint the defendant says that the driver of plaintiff's automobile was himself guilty of negligence which proximately contributed to the damages to plaintiff's automobile, in this: That the automobiles of plaintiff and defendant were proceeding in the same direction upon Old Shell road, in Mobile county, Ala the defendant's automobile being ahead of plaintiff's automobile; that at the time of said accident the driver of plaintiff's automobile negligently attempted to pass defendant's automobile, without giving notice to the driver of defendant's automobile of his intention, by signal or otherwise, and at said time the driver of defendant's automobile did not know that the driver of plaintiff's automobile intended to pass defendant's automobile, and as a proximate result thereof the two automobiles collided."

Plea F reads:

"And for further plea in its behalf to the complaint the defendant says that the plaintiff ought not to have and maintain this suit because he was paid in full for all damages sustained by his said automobile, before the institution of this suit, by the United States Casualty Company, the insurer of his said automobile against collision, and that all his right to damages had been subrogated to the United States Casualty Company, and plaintiff has no further interest in this suit."

Plaintiff filed the following replications:

"(1) That before attempting to pass the defendant's automobile the driver of the plaintiff's automobile sounded a loud horn and the driver of the defendant's automobile drove said automobile to the right side of the road, leaving sufficient room to his left for plaintiff's automobile to pass had the defendant's automobile not turned suddenly to the left.

"(2) That as the driver of plaintiff's automobile approached within a short distance behind defendant's automobile he gave a loud signal with an automobile horn, and the defendant's automobile promptly turned to the right side of the road, whereupon plaintiff's automobile increased its speed and attempted to pass to the left of defendant's automobile, when suddenly defendant's automobile was turned to the left and across the road, causing the collision as alleged in the complaint."

The following charges requested by defendant were refused by the trial court:

"(7) The court charges the jury that, where two cars are proceeding in the same direction on a public road, the car in front has the right to occupy any part of the said public road that the driver of same may desire to occupy, and, unless he is seasonably notified of the intention of the car behind to pass him, has the right to turn across or out of said public road."

"(9) The court charges the jury that the driver of plaintiff's automobile was under duty to be duly watchful of the defendant's automobile, and be prepared for any change in its direction that might have reasonably been anticipated at said time, and, if you are reasonably satisfied from the evidence that the driver of the defendant's automobile seasonably signaled the driver of the plaintiff's automobile, by holding out his left hand, of his intention to turn out of Old Shell road, then your verdict must be for the defendant."

"(13) The court charges the jury that, if you believe from the evidence that the place where the collision occurred was not frequently traveled by automobiles or other vehicles, and that the driver of defendant's automobile had no reason to believe that an automobile was approaching him from the rear, and did not know that plaintiff's automobile was approaching him from the rear, then the driver of defendant's automobile was under no duty to hold out his hand or give other signal of his intention to turn across or out of the road into a private driveway or street."

Charge 1 given at the request of plaintiff reads as follows:

"1. The court charges you, gentlemen of the jury, that, if you believe from the evidence that the driver of the plaintiff's automobile before attempting to pass the defendant's automobile blew his horn loud enough for the driver of the defendant's automobile to have heard it, and the driver of the defendant's automobile drove his car to the right-hand side of the road, and then suddenly turned shortly across the road to the left without giving any signal to the driver of the plaintiff's automobile, and by so doing caused the damage to the plaintiff's automobile, as alleged in the complaint, you must find for the plaintiff."

Armbrecht, Hand & Meredith and S. M. Johnston, all of Mobile, for appellant.

Smiths, Young & Leigh, of Mobile, for appellee.

SAMFORD J.

When two automobiles are being driven along a public road in the same direction, the relative duties the one owes to the other are to be governed somewhat by the circumstances of the particular case. The driver of the front car owes no duty to the rear or trailing car except to use the road in the usual way, in keeping with the laws of the road, and until he has been made aware of it, by signal or otherwise, he has a right to assume, either that there is no other automobile in close proximity to his rear, or that, being there, it is under such control as not to interfere with his free use of the road in front of and to the side of him in any lawful manner. In the absence of facts or circumstances that would put him on notice of the near approach...