Ivy v. Marx

• Decision Date: 25 November 1920
• Docket Number: 6 Div. 2
• Citation: 205 Ala. 60,87 So. 813
• Parties: IVY v. MARX.
• Court: Alabama Supreme Court

87 So. 813

205 Ala. 60

IVY v. MARX.

6 Div. 2

Supreme Court of Alabama

November 25, 1920

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action by Leopold Marx against Paul A. Ivy. Judgment for plaintiff and defendant appeals. Affirmed.

Cabaniss & Cabaniss, of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

GARDNER J.

This appeal presents but a single question, Did the defendant, in the court below, while driving his automobile on Twenty-First street in the city of Birmingham, owe any duty to the plaintiff to keep a lookout while the latter, a pedestrian was crossing said street at a place other than at the highway intersection in the city of Birmingham, in violation of a municipal ordinance then in force.

The trial court instructed the jury that if the plaintiff was violating said ordinance, and such violation was the proximate cause of the injury, then he would be guilty of contributory negligence, and could not recover but refused the charge appearing in the statement of the case, which is to the effect that the violation of such municipal ordinance by the plaintiff exempted the defendant from the duty of keeping a lookout for him.

It is well recognized as a general rule of law that an automobile driver owes a duty to keep a lookout for pedestrians not only at street crossings, but between street intersections. Buddy on Automobile, § 435, and note; 28 Cyc. 28, 29; 2 R.C.L. 1186; note to Baker v. Close (N.Y.) 38 L.R.A. (N.S.) 487. In Adler v. Martin, 179 Ala. 97, 59 So. 597, is the following quotation, here applicable, from Baker v. Close, supra:

"A pedestrian who crosses a street at a place where there is no regular crossing may be chargeable with some additional vigilance, because it is not a place set aside for the crossing of foot passengers, although even at such a place drivers are required to be watchful and careful."

In Barbour v. Shebor, 177 Ala. 304, 58 So. 276, this court said:

"The simple rule is that drivers on the street and pedestrians, each recognizing the rights of the other, are required to exercise reasonable care."

So, it is held in this state that the rule with regard to stopping, looking, and listening before crossing a railroad is without application to a person crossing a street. Corona Coal & Iron Co. v. White, 158 Ala. 627, 48 So. 362, 20 L.R.A. (N.S.) 958; Barbour v. Shebor, supra; Adler v. Martin, supra.

It therefore appears that the general rule of law required the defendant to keep a lookout for pedestrians while driving his car upon Twenty-First street in the city of Birmingham, whether the pedestrian was crossing the street at the regular crossing or diagonally.

The sole remaining question therefore is whether or not the municipal ordinance requiring pedestrians to cross the street at the street intersection, and not diagonally, punishing a violation of same by fine or imprisonment, has so changed the general rule as to the duty of the defendant to keep a lookout for pedestrians as to exempt him therefrom, when the pedestrian is crossing the street in a manner violative of such ordinance. It is plain there is nothing in the ordinance so indicating; but it is merely a traffic regulation, passed by the city to better conserve the public safety. It was certainly passed with a view to protect human life, and to give the ordinance a construction which would sanction a relaxation of vigilance on the part of drivers of automobiles upon the public streets would run counter to its evident intent. To construe the ordinance as contended by defendant would mean, in this case, that the defendant had the right so far as any duty owing to the plaintiff as a pedestrian crossing the street at a place other than the street intersection was concerned, to drive his car blindly along such thoroughfare, and answerable only for wanton conduct or negligence after discovery of pla...