Hood & Wheeler Furniture Co. v. Royal

• Decision Date: 29 November 1917
• Docket Number: 6 Div. 503
• Citation: 200 Ala. 607,76 So. 965
• Parties: HOOD & WHEELER FURNITURE CO. v. ROYAL.
• Court: Alabama Supreme Court

76 So. 965

200 Ala. 607

HOOD & WHEELER FURNITURE CO. v. ROYAL.

6 Div. 503

Supreme Court of Alabama

November 29, 1917

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by Eulass Royal, by next friend, against the Hood & Wheeler Furniture Company. Judgment for plaintiff, and defendant appeals. Affirmed.

A.G. &amp E.D. Smith, of Birmingham, for appellant.

McArthur & Howard, of Birmingham, for appellee.

SAYRE J.

Appellants (defendants) demurred to the fourth count of the complaint. The demurrer was properly overruled. The count was grounded upon an alleged violation of an ordinance of the city of Birmingham which provides, substantially, that it shall be unlawful to operate or run any motor vehicle upon the public highways in the city of Birmingham recklessly or at a rate of speed greater than is reasonable and proper having regard to the width, traffic, and use of the highway, or so as to endanger property or the life or limb of any person. In so far as the ordinance provides a rule of conduct--that is, apart from the penalty demanded for its violation--it is nothing more than an adoption of the statute of the state (Acts 1911, p. 642, § 21) which itself merely declares the common law. True, the statute provides that a rate of speed in excess of 30 miles an hour for a distance of a quarter of a mile shall be presumed--by which we suppose the Legislature intended to say presumptive--evidence of traveling at a rate of speed which is not careful and prudent, that local authorities shall have no power to pass, enforce, or maintain any ordinance, rule, or regulation regulating motor vehicles or their speed contrary to the provisions of the act (section 32 of the act supra), provided, however, that "suitable ordinance, rules and regulations may be passed regulating speed to a reasonable slowness at crossings or in turning curves or in congested highways and streets" (Id.), and it is also true that the ordinance enacts no such rule of evidence. Still that fact does not make the ordinance inconsistent with the statute. The ordinance, so far as it goes to the point at issue, is framed in the very language of the statute, and the statute, as we have seen, states a principle of general law. The ordinance was therefore not void for unreasonableness or uncertainty nor for inconsistency with the general law of the state. Nor was it necessary that the count should carry an averment of negligence eo nomine, for the failure of defendants' agent to observe the duty imposed by the mandatory ordinance was negligence per se. Sloss-Sheffield Co. v. Sharpe, 161 Ala. 432, 50 So. 52; K.C.M. & B.R.R. Co. v. Flippo, 138 Ala. 487, 35 So. 457. The count alleged the substance of the ordinance, that it was in force and effect, that defendants' agent failed to comply with its mandate, and that plaintiff was injured in consequence, and this was enough. B.R.L. & P. Co. v. Fuqua, 174 Ala. 631, 56 So. 578.

The complaint alleged that plaintiff was about seven years of age. Plea 4 undertook to answer by averring that:

"Plaintiff walked or ran from a place of safety on said street in front of the automobile truck of the defendants with knowledge of the danger from the approaching automobile truck, and in doing so got in such close proximity to the automobile truck that no preventive effort on the part of the defendants' employé in charge of the car could have avoided the collision," etc.

Plaintiff was prima facie incapable of exercising judgment and discretion, and hence prima facie incapable of contributory negligence. Government Street R.R. v. Hanlon, 53 Ala. 70; B.R.L. & P. Co. v. Landrum, 153 Ala. 192, 45 So. 198, 127 Am.St.Rep. 25; Central of Georgia v. Chambers, 183 Ala. 155, 62 So. 724. But appellants say the plea was not a plea of contributory negligence. If so, it was a plea of denial merely, and defendants had the full benefit of it under their plea of the general issue. In either case there was no reversible error in sustaining the demurrer to the plea.

There was no error in the rulings on evidence. At the place where defendants' automobile truck ran upon plaintiff, one side of the street had been rendered impassable by reason of improvements going on there. The other side was partially obstructed by a sand pile next to the curb. It resulted that vehicles moving along the street in either direction at that point were obliged to move over toward the center of the street and near, if not directly upon, one or the other of two tracks there laid and used by the street car company. In this situation the manner of the street car company's use of its tracks, its frequency, etc., may have been properly considered by the jury as shedding light upon the question as to what speed defendants' truck might, in the observance of due care, maintain at that point.

There was no merit in the first exception to the court's oral charge. The court, briefly, but sufficiently, stated a view of the ordinance substantially the same as that expressed by us heretofore.

The context of that part of the court's oral charge to which the next exception was reserved, as well as the language itself of the part in question, shows that the court was speaking exclusively of damages for physical and mental pain, when it said to the jury that:

"It is (was) left entirely to the discretion of the jury trying the case to determine from all the evidence in this case what would be reasonable compensation for physical or mental pain."

It seems to be conceded in the brief that the charge would not be subject to criticism had it said "sound discretion" instead of "discretion" ...