J. C. Byram & Co. v. Livingston

• Decision Date: 09 June 1932
• Docket Number: 6 Div. 53.
• Citation: 225 Ala. 442,143 So. 461
• Court: Alabama Supreme Court
• Parties: J.C. BYRAM & CO. v. LIVINGSTON.

143 So. 461

225 Ala. 442

J.C. BYRAM & CO. v. LIVINGSTON.

6 Div. 53.

Supreme Court of Alabama

June 9, 1932

Rehearing Denied Oct. 13, 1932.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Action by L. O. Livingston against J. C. Byram & Co. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

The refusal of requested instructions covered by those given is not error.

The oral charge of the court is, in pertinent part, as follows:

"Now gentlemen, another question comes up, and that has to do with the question of right of way. It would not come in the event, gentlemen, that you find that the defendant was injured on the left-hand side of the highway-I mean the plaintiff was-If you find that the defendant was operating the automobile down the left-hand side of the highway at that time, then, under the law, the law would not say that either one had the right of way in respect to the matter. If the defendant was operating the automobile down the right hand side of the highway, at a proper and prudent rate of speed, then it would be the duty of, and would have been the duty of, the automobile to have yielded, the law being that when pedestrians cross, meet with automobiles at intersections, if they approach there approximately at the same time, that it is the duty of vehicles to give way and yield to the pedestrians. When they cross jay-walking, it is the duty -By the way, I will say this to you, gentlemen, so you will understand the law on it; Down town here in what we call the Loop Area-that means the business sections-it is a violation of the law to cross between the blocks. Out in residential sections, as well as the place where this accident happened, a pedestrian has the right to cross a street at a place other than a street intersection, and it is not a violation of the law for him to cross the street at a place which is not a street intersection; but where he does undertake to cross at a place which is not a street intersection and there is a vehicle approaching, it is his duty, if the vehicle is proceeding at a lawful and proper rate of speed, to wait and allow the vehicle to pass ahead of him; also provided the vehicle is on the right-hand side of the road. He is under no duty to keep a lookout for vehicles which are approaching on the right-hand side of the road; and the law would be, gentlemen-

"Mr. Mullins (interposing). You mean the left hand side.

"The Court (Addressing the jury). When it is approaching on the left hand side of the road. That is to say, taking this particular case that is now before you, gentlemen, if the plaintiff was struck on the left- hand side of the road, he would have the right to rely and to assume that the vehicles approaching from the south and moving to the north, until he had some cause to believe, or some reasonable ground to conclude otherwise, that vehicles driven from the south to the north, would observe the rule of the road that requires the vehicles to travel on the right-hand side of the road in which they are proceeding. Of course, if he did observe it, or if he had reason to believe that a vehicle was approaching on Fiftieth Street, going from the south to the north, and it was going on the left-hand side of the road, or if it came to his attention that a vehicle was approaching on the left hand side of the road, then, of course, it would be his duty to, in the light of that knowledge and in the light of those circumstances, to do what an ordinarily prudent person would have done under the same or similar circumstances to protect himself from injury."

The bill of exceptions recites:

"(At the conclusion of the oral charge of the court, and before the jury retired, the defendant separately and severally reserved the following exceptions to the oral charge of the court to the jury):

"That there was no duty to keep a lookout, by a pedestrian, in crossing a street between intersections in the residence sections.

"That there was no duty to keep a lookout for cars traveling on the left or wrong side of the highway."

The following charges were refused to defendant:

7. "The court charges the jury that if you find from the evidence that plaintiff was guilty of violating an ordinance of the City of Birmingham at the time of his collision with defendant's truck and that his violation of said ordinance proximately contributed in the least to his injuries and damages complained of, your verdict should be for the defendant under count one of the complaint."

13. "The Court charges the jury that if you find from the evidence in this case, that the plaintiff at the time of the collision complained of, failed to keep due lookout for his own safety, and that his failure so to do, proximately contributed in the slightest degree to his injuries and damages complained of, your verdict will be for the defendant under count one of the complaint."

B. F. Smith, of Birmingham, for appellant.

Mullins, Pointer & Deramus, of Birmingham, for appellee.

THOMAS J.

The questions reserved for decision are the overruling of demurrer to the wanton count of the complaint, and the giving and refusing of instructions to the jury. The plea was in short by consent.

It is true that, where the facts are specifically stated, they must support the characterization of such facts as to wantonness. Jackson v. Vaughn, 204 Ala. 543, 86 So. 469. And wanton negligence may be pleaded without setting out the facts showing wantonness. St. Louis & S. F. Ry. Co. v. Dennis, 212 Ala. 590, 103 So. 894.

The gravamen of count 2 was "that all of his (plaintiff's) aforementioned injuries were a proximate consequence of the wantonness of the defendant, its agents, servants or employees, in wantonly causing or allowing said automobile truck to run into, upon or against the plaintiff on the occasion aforementioned."

The record proper fails to show a specific ruling on the demurrer, and the sufficiency of the complaint will not be considered on appeal. Yates v. Barnett, 215 Ala. 554, 112 So. 122; Berger v. Dempster, 204 Ala. 305, 85 So. 392; Seaboard Air Line Ry. Co. v. Pemberton, 202 Ala. 55, 79 So. 393; Alabama Chemical Co. v. Niles, 156 Ala. 298, 47 So. 239.

There are several assignments as to portions of the oral charge. It is the rule that general exceptions to the oral charge, without sufficiently indicating the language to which exception is reserved, are insufficient to present that instruction for review. Ex parte Cowart, 201 Ala. 55, 77 So. 349; Knowles v. Blue, 209 Ala. 27, 33, 95 So. 481; Liverpool & London & Globe Ins. Co. v. McCree, 210 Ala. 559, 98 So. 880; H. J. Crenshaw & Co. v. Seaboard Air Line Ry. Co., 219 Ala. 206, 121 So. 736; Jordan v. Smith, 185 Ala. 591, 64 So. 317; Birmingham Railway, Light & Power Co. v. Friedman, 187 Ala. 562, 65 So. 939. However, conceding without deciding the exception reserved by reference was sufficient, when the subject-matter of that instruction is taken with the interruption and correction by counsel, and considered with the context, there was no reversible error.

The matter of Gen. Acts 1927, p. 370, § 55, and the municipal ordinance are considered in pari materia. When the whole of the charge is considered, the oral instructions were within the rule of our cases. Ivy v. Marx, 205 Ala. 60, 87 So. 813, 14 A. L. R. 1173; Shafer v. Myers, 215 Ala. 678, 112 So. 230; Ruffin Coal & Transfer Co. v. Rich, 214 Ala. 633, 108 So. 596; Echols v. Vinson, 220 Ala. 229, 124 So. 510; Brown v. Bush, 220 Ala. 130, 124 So. 300; L. Hammel Dry Goods Co. v. Hinton, 216 Ala. 127, 112 So. 638; Birmingham Stove & Range Co. v. Vanderford, 217 Ala. 343, 116 So. 334; Adler v. Martin, 179 Ala. 97, 59 So. 597.

Whether or not defendant's refused charge 13 may be refused in its present form, it was...