King v. Brindley

• Court: Alabama Supreme Court
• Writing for the Court: LIVINGSTON
• Citation: King v. Brindley, 255 Ala. 425, 51 So.2d 870 (Ala. 1951)
• Decision Date: 12 April 1951
• Docket Number: 6 Div. 953
• Parties: KING et al. v. BRINDLEY et al. , 954.

Page 870

51 So.2d 870

255 Ala. 425

KING et al. v. BRINDLEY et al.

6 Div. 953, 954.

Supreme Court of Alabama.

April 12, 1951.

F. W. Davies and Davies & Williams, all of Birmingham, for appellants.

Clifford Emond, of Birmingham, for appellees.

LIVINGSTON, Chief Justice.

Jean Brindley and Doris Barker sued C. B. King, doing business as Shades Valley Cab Company, Casualty Reciprocal Exchange of Kansas City, Missouri, and Tom F. Gallups, in the Circuit Court of Jefferson County, Alabama, claiming damages for personal injuries received when an automobile in which they were riding collided with an automobile belonging to King and driven by Gallups.

Separate suits were filed in the court below, but the pleadings and evidence, except as to the extent of the injuries, and applicable law being identical in the two suits, they were consolidated and tried together. The jury returned verdicts in favor of each plaintiff and defendants appealed. By amendment, Gallups was stricken as party defendant before the jury retired.

The cases were consolidated on appeal and submitted on one record. We will, therefore, treat the questions presented as if a single plaintiff was involved, with the understanding, of course, that this decision applies to each plaintiff.

The case was submitted to the jury on count A of the complaint. Count A claimed damages of $5000.00 against C. B. King, doing business as Shades Valley Cab Company; Casualty Reciprocal Exchange of Kansas City, Missouri, and Tom F. Gallups, and alleged that plaintiff was riding as a passenger in an automobile upon a public highway in the City of Birmingham, Jefferson County, Alabama, at Third Avenue and Eighth Street West on the 5th day of September, 1948, and at said time and place, a motor vehicle driven by the defendant, Gallups, as agent for the defendant C. B. King, doing business as Shades Valley Cab Company, ran into, upon, or against the automobile in which the plaintiff was riding, and as a proximate consequence thereof, plaintiff suffered the injuries and damages claimed in the complaint. The count also alleged in substance that the automobile of the defendant King, at the time of the accident, in compliance with the laws, ordinances and regulations of the City of Birmingham, was insured in the Casualty Reciprocal Exchange, of Kansas City, Missouri, and that the said defendant King had procured permission from the City of Birmingham for the operation of said motor vehicle which collided with the automobile in which plaintiff was riding, and had caused to be executed and filed with the City of Birmingham, in accordance with the laws, ordinances, and regulations, an insurance contract, by the terms of which, as the laws of said City of Birmingham provided, the defendant, Casualty Reciprocal Exchange, of Kansas City, Missouri, agreed to insure the plaintiff against injuries and damages sustained as a proximate consequence of the negligence of the defendant Gallups while acting as agent for defendant King in and about the operation of said motor vehicle on said occasion, and said contract of insurance was in full force and effect on the date and occasion complained of in the principal sum of Five Thousand Dollars; and further that all her said injuries and damages aforesaid were proximately caused by the negligence of the defendant, Tom F. Gallups, while acting within the line and scope of his employment as an agent, servant or employee of the defendant C. B. King, doing business as Shades Valley Cab Company, in and about the operation and control of the said motor vehicle driven by him at the time and place aforesaid.

Demurrers of each defendant to the complaint were overruled.

Casualty Reciprocal Exchange also filed a motion to strike it as a party defendant on the ground that it was improperly joined as a party defendant. The motion was overruled.

Defendants interposed a plea of the general issue in short by consent with leave, etc.

The undisputed evidence shows that plaintiff in the court below, appellee here, was injured at the intersection of Eighth Street West and Third Avenue in the City of Birmingham, Alabama, at about 2:30 A.M., on September 5, 1948: that she was riding in a U-Drive-It car driven by James Newman; that Jean Brindley was riding on the front seat with Newman, and that Doris Barker and Thomas York were riding on the back seat of the car driven by Newman; that the Newman car was proceeding west on Third Avenue; that the taxicab of King, driven by Gallups, was proceeding south on Eighth Street West; that the Newman car ran into the side of the King car, striking it at about the left front door, in the intersection of Third Avenue and Eighth Street West; that there is a boulevard 'stop' sign on Eighth Street West, come 10 or 15 feet north of the intersection with Third Avenue.

Appellee's evidence tended to prove that the car driven by Newman, and in which she was riding, was proceeding along Third Avenue in a westerly direction at a speed of from 20 to 25 miles per hour: that as the Newman car entered the intersection formed with Eighth Street West, the cab driven by Gallups, going south on Eighth Street West, drove out into the intersection and stopped, or nearly so, in the path of the Newman car.

On the other hand, appellants' evidence tended to show that the cab driven by Gallups approached the intersection on Eighth Street West and stopped at the stop sign; that Gallups looked in both directions, then proceeded slowly into the intersection and seeing the Newman car approaching at a high rate of speed stopped again after the cab had reached a point about a car's length into Third Avenue, and that the Newman car ran into the side of the cab. Gallups' testimony is in conflict as to the distance the Newman car traveled after he saw it. He testified that it was within 30 or 40 feet of his cab when he first saw it, and also that it was some 100 or 200 feet away when he first saw it.

The evidence is also conflicting as to how far east the view of Third Avenue is clear from a point at the north curb line of said avenue where it intersects Eighth Street West.

Clearly the evidence was sufficient to take the case to the jury on the issue of the negligence vel non of the driver of the taxicab. Affirmative charges for the appellants, on that issue, were properly refused and assignments of error based thereon are without merit.

Appellants insist that the evidence was also sufficient to take the case to the jury on the issue of appellee's contributory negligence, and that charges, in effect written general charges on that issue, were erroneously given for appellee.

One riding in an automobile driven by another, even though not chargeable with the driver's negligence, is not absolved from all personal care for his own safety, but is under the duty of exercising reasonable or ordinary care to avoid injury; that is, such care as an ordinarily prudent person would exercise under like circumstances. Moore v. Cruit, 238 Ala. 414, 191 So. 252; Proctor v. Coffey, 227 Ala. 318, 149 So. 838; Bradford v. Carson, 223 Ala. 594, 137 So. 426; McDermott v. Sibert, 218 Ala. 670, 119 So. 681; Birmingham Ry. Light & Power Co. v. Barranco, 203 Ala. 369, 84, So. 839; Utility Trailer Works v. Phillips, 249 Ala. 61, 29 So.2d 289; McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508, 510; Birmingham Southern Ry. Co. v. Harrison, 203 Ala. 284, 82 So. 534.

Some of the cited cases are suits by the passenger against third persons, others by the passenger against the driver or owner of the vehicle in which the passenger or guest was riding. But as said in the case of McGeever v. O'Byrne, supra: 'it can make no difference in principle whether the suit is against a third person, or against him who negligently operates the car; and the duty of the passenger to observe due care under the circumstances for his own safety must be the same in either case.'

And in speaking of the duty to use due care on the part of the guest or passenger it was held in the case of Birmingham Ry. Light & Power Co. v. Barranco, supra [203 Ala. 639, 84 So. 842]:

'The duty is therefore not original with respect to the operation of the vehicle, but resultant, and that only from known and appreciated circumstances capable of bringing it into effect * * * no fixed rule applicable to all cases can be formulated by which to determine when the duty stated arises, or what particular circumstances raise the duty, or what particular warning, protest, or action will suffice to manifest a discharge of the duty once it has arisen.'

'The ingredients of contributory negligence do not differ in any respect from those of primary negligence; it is after all 'like primary negligence, relative and not absolute, and being relative it is dependent on the peculiar circumstances of each particular case.'' McDermott v. Sibert, supra [218 Ala. 670, 119 So. 684].

It was said in Proctor v. Coffey, supra: 'We do not think that the authorities support the claim that a mere opportunity to know the danger is sufficient in the absence of facts suggesting to the guest as a person of ordinary care a necessity to keep a watch. That is what was held in the case of Baker v. Baker, supra [220 Ala. 201, 124 So. 740]. So in the case of B. [irmingham] R. [y] L. [ight] & P. [ower] Co. v. Barranco, supra, the duty of the guest is said to arise when he should anticipate that the driver of the vehicle will enter the sphere of danger or omit to exercise due care, not when he has the opportunity to so anticipate without anything to direct his attention to such condition. This principle is also mentioned in McGeever v. O'Byrne, s...