L. Hammel Dry Goods Co. v. Hinton

• Decision Date: 21 April 1927
• Docket Number: 1 Div. 442
• Citation: 112 So. 638,216 Ala. 127
• Parties: L. HAMMEL DRY GOODS CO. v. HINTON.
• Court: Alabama Supreme Court

112 So. 638

216 Ala. 127

L. HAMMEL DRY GOODS CO. v. HINTON.

1 Div. 442

Supreme Court of Alabama

April 21, 1927

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Action for damages by W.R. Hinton against the L. Hammel Dry Goods Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals, under Code 1923, § 7326 Affirmed.

Smiths Young & Johnston, of Mobile, for appellant.

A.S Whiting and R.H. McConnell, both of Mobile, for appellee.

THOMAS J.

Plea 2 as amended, to which demurrer was sustained, was no answer to count 3 setting up the violation of the rule of the road. And this justified the ruling of the trial court. Moreover, the plea was ambiguous in the use of the words, "collide with said automobile." If defendant's truck was referred to in the plea, as insisted in argument of the appellee, the averment is insufficient--the fact stated failed to show notice or knowledge of the plaintiff of the whereabouts of "said" defendant's car or truck.

The plea was insufficient as an answer to the other counts. One having the right of use to double driveway streets may assume that the other so using the thoroughfare will observe the law of the road at such time and place and under the circumstances presented. That is to say, proceeding as plaintiff is averred to have approached the point of collision on a paved street or hard-surfaced road, he may act upon the assumption that others crossing or approaching thereon will observe the rule of the road, and is not guilty of contributory negligence, in the first instance, in acting on that assumption; no facts being averred to show that he was sufficiently apprised of the fact that the other would not observe the law.

The general duty of due care under the circumstances was all that was required of the plaintiff. Shafer v. Myers (Ala.Sup.) 112 So. 230; Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642. That is to say, plaintiff's conduct is to be judged under the "certain circumstances" of the time and place and the rules of the road binding on all traversing the public thoroughfare where the collision occurred. The plea sought to place upon the plaintiff a higher duty of a special lookout for cars entering Springhill avenue from the south and from Lanier avenue. The facts averred in the plea do not sufficiently show the duty on plaintiff to keep the lookout indicated for cars approaching from Lanier into Springhill avenue; it is subject to the fifth ground of demurrer. Barbour v. Shebor, 177 Ala. 304, 58 So. 276; Adler v. Martin, 179 Ala. 97, 59 So. 597; So. Express Co. v. Roseman, 206 Ala. 681, 91 So. 612.

Affirmative instruction was requested as to count 3, and objection made to the introduction in evidence of ordinance No. 4 on the theory or ground that the ordinance was unreasonable and void and in conflict with the general law stated in section 6266 of the Code of 1923, and rulings thereon are urged as error. We do not understand that the ordinance is in conflict with the general law, or that its provisions are unreasonable. The rules of the road, so stated in the general law, were subject to the imposition of reasonable ordinances or traffic regulations by municipalities. The express provisions therefor were:

"At intersections of public highways, the vehicle approaching on the right of the other vehicle shall have the right of way, but this shall not prevent municipalities from adopting ordinances for the regulation of traffic within their boundaries; and vehicles traveling on trunk roads established under the laws of Alabama shall have the right of way."

See, also, sections 1347, 1348, and 1350.

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