Harrison v. Mobile Light & Railroad Co.

• Decision Date: 17 December 1936
• Docket Number: 1 Div. 922
• Citation: 233 Ala. 393,171 So. 742
• Parties: HARRISON v. MOBILE LIGHT & R. CO.
• Court: Alabama Supreme Court

171 So. 742

233 Ala. 393

HARRISON v. MOBILE LIGHT & R. CO.

1 Div. 922

Supreme Court of Alabama

December 17, 1936

Rehearing Denied Jan. 21, 1937

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action for wrongful death by Fannie W. Harrison, as administratrix of the estate of Edward Harrison, deceased, against the Mobile Light & Railroad Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Charges which were subject to criticism were properly refused.

Plea 12 sets up that Washington avenue constitutes the principal line of travel for vehicles between the southern and northern parts of the city of Mobile; that a very great number of vehicles, including street cars, pass along said street at said point each day; that this fact was known to plaintiff's intestate; that he knew that automobiles were constantly parked along the west curb line of said Washington avenue at or near the point of collision, but notwithstanding said knowledge, and although he saw defendant's street car and saw an automobile or automobiles parked along the west curb of Washington avenue, he negligently ran his automobile along said street car track without turning therefrom, at a time when he could have slowed down said automobile and left said track in safety, which negligence of intestate proximately contributed to his injury and death.

Plea 14 sets up that plaintiff's intestate, with full knowledge that defendant's street car was on the track ahead of him, negligently continued to drive said automobile down said street car track at a high rate of speed, in the direction of, and into the front end of, said street car, and as a proximate consequence of said negligence the collision and injury resulted.

Plea 15 avers that plaintiff's intestate, with knowledge that the defendant's street car was on said street car track before him and that it was probable or likely that the automobile he was driving down defendant's street car track could not get to a point of safety between the defendant's street car track and the west curb line of Washington avenue on account of automobiles being parked along said curb line, nevertheless negligently continued to drive said automobile down said track at a high rate of speed into the defendant's said street car, as a proximate consequence of which negligence he was injured, etc.

Charge 10, refused to plaintiff (to like effect of which is charge 11), is as follows: "The Court charges the jury that it was not the duty of the plaintiff's intestate to ascertain whether or not the way ahead of him, along Washington Avenue, was clear before proceeding southwardly but on the contrary in the absence of any warning from the street car, or of any information on his part that the motorman had, or was about to create, an obstruction in the line of his passage, he had a perfect right to proceed upon the presumption that no such obstruction would be created."

The following question was propounded by defendant to plaintiff's witness Wm. H. Harrison: "Is this the same automobile that Mr. Harrison turned his wife over in several years ago, and sued him in this court for $50,000?" Plaintiff's objection was overruled and this ruling is made the basis of assignment of error 14.

The question propounded by defendant to plaintiff, overruling of objection to which is made the basis of assignment 15, is as follows: "Your husband had been in many accidents and was a reckless driver, was he not?"

Harry T. Smith & Caffey, of Mobile, for appellant.

Smith & Johnston, of Mobile, for appellee.

GARDNER Justice.

Plaintiff's intestate (her husband) on the night of March 13, 1934 (9 p.m. o'clock), was driving his automobile south on Broad street in the city of Mobile, and into Washington avenue, with which Broad street converges from the north, when there was a collision between his car and the street car of defendant company, which was proceeding north on Washington avenue, resulting in his death. Plaintiff was riding with her husband at the time, and her testimony as well as photographs of the automobile disclose that it was not a "head-on" collision in the true sense, for the reason that as her husband approached defendant's car, he swerved immediately to the right in evident effort to clear the tracks and avoid the collision, but was too close at the time, with the result that the left front side of his automobile received the impact, rather than its immediate front, coming in contact with the street car on its left front side, tearing loose a sign fastened thereon, and scattering much glass. The car track was embedded in the street and a part thereof.

While there was ample room on Washington avenue between the car track and the west curb for the passage of automobiles going south, plaintiff's theory of the necessity for driving onto the defendant's car track was the presence of a parked automobile on Washington avenue, which extended east towards the track to such an extent as to leave no sufficient room for the passage on the street of another automobile, and that defendant's motorman was guilty of both negligence as well as wantonness in failing to sound his gong and give warning of the approaching street car, or to slacken the speed, which, it is insisted, was from twenty to twenty-five miles per hour, the same as that of the automobile.

It was defendant's theory that the street car was being operated in a prudent manner, going north on Washington avenue, at a speed of about ten miles an hour, when the motorman discovered, as he reached Pettus street, the automobile on the track running at an estimated speed of forty or forty-five miles an hour; that seeing a collision was imminent the motorman "jumped up and stepped off beside the operator's seat to get out of the way"; that this brought the car in "automatic emergency," and the car responded, coming to a stop as soon as the emergency took hold; that the car traveled about thirty feet from the time the motorman first saw it, stopping with the front end about twenty feet north of Pettus Street. The motorman insists that his car was therefore standing still when the collision occurred, and that the automobile, in the effort of the driver to get off the track, "glanced off," and went by the street car and in fact came to a stop on the track in its rear. Defendant's theory of the accident is better described by the following excerpt from the motorman's testimony: "An automobile came upon the track about Baltimore Street. The automobile was going fast. The automobile was directly at me. There was nothing between the driver of the automobile and me to keep him from seeing me or me from seeing him. He was on me immediately after I saw him coming into the street. I jumped to get out of the way, and stopped the car in emergency. There was not a thing in the world I could have done that I did not do to avoid that accident."

The motorman did not remember seeing any parked car at the place, did not sound the gong after he "saw the man," and does not remember when he sounded it before. The street was illuminated and the lights on the street car were burning. He had observed there was an automobile parked at that place several times, but had not noticed, and did not know, whether or not any car was parked there on this particular trip.

Washington avenue is a frequently used street, with which plaintiff and her husband were entirely familiar, but she testifies that at that hour of the night it was not frequently used, and that no other automobiles were parked on the west side of Washington avenue save this one. Plaintiff offered her testimony in the recorder's court in which she stated there were no other cars on the street at that time.

Plaintiff insists the street car did not come to a stop immediately upon the collision, but continued a short distance, that the automobile's speed did not exceed twenty-five miles per hour, and that the street car could not be seen before reaching the drugstore at the corner of Baltimore and Broad streets, on account of the contour of the street and said drugstore building.

Defendant's evidence tended to show the street was visible north of Broad street a distance of 240 feet, but in any event was entirely visible the distance from the drugstore to north of Pettus street where the collision occurred--a distance, as appears from the map (Plaintiff's Exhibit 1), of about 150 feet. But this should, without further elaboration, suffice as a general outline of the case and of the theories upon which it was submitted to the jury.

The trial court submitted the issues of negligence, wantonness, and contributory negligence pleaded by defendant for the jury's consideration, resulting in a verdict for defendant, and from the judgment following thereon plaintiff prosecutes this appeal.

Demurrers to counts 6 and 7 as amended were sustained, which rulings constitute the first assignment of error here argued.

The gravamen of count 6 is the alleged negligent failure of defendant to establish any rule or regulation requiring its motorman to give a signal or otherwise to instruct its motorman to give a signal. But the count does not allege that the motorman on this occasion negligently failed to give a signal. Assuming for the moment the right of plaintiff's intestate to place reliance upon a failure of defendant to give instructions to its motormen, the count is defective in failing to allege that the motorman on this occasion did in fact negligently fail to give any signal. By analogy the cases of Rush v. McDonnell, 214 Ala. 47, 106 So 175, 177; Wise v. Schneider, 205 Ala. 537, 88 So. 662, 663; Sloss-Sheffield Steel & Iron Co. v. Bibb, 164 Ala. 62, 51 So. 345; First National Bank v. Chandler, 144 Ala. 286, 39 So....