McCaa v. Thomas

• Decision Date: 02 February 1922
• Docket Number: 6 Div. 560.
• Parties: MCCAA v. THOMAS.
• Court: Alabama Supreme Court

92 So. 414

207 Ala. 211

MCCAA v. THOMAS.

6 Div. 560.

Supreme Court of Alabama

February 2, 1922

Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.

Action by John H. McCaa against John H. Thomas for damages for personal injuries sustained in an automobile accident. Judgment for defendant, and plaintiff appealed. Reversed and remanded.

In action for injuries in automobile accident, error in instruction on contributory negligence held prejudicial.

The collision was between a new Studebaker car, being driven by Thomas, and a motorcycle, being driven by McCaa. The testimony was in conflict as to whether the right-hand hub and fender of the car, or the left-hand, was dented and bent the preponderance going to show that the right-hand was dented and bent. There was also dispute in the evidence as to whether signals were given by either party as the two vehicles approached the intersection of a road where the accident occurred; the testimony for the defendant tending to show that the car was being driven at not over 20 miles an hour, that signals were blown and brakes applied, and that notwithstanding all this the plaintiff, riding rapidly, ran into defendant's automobile with such force as to throw him over the hood of the automobile and onto the road beyond his motorcycle bouncing back to the other side of the road. Evidence for the plaintiff tended to show that the plaintiff had entered the intersection of the road, had cleared the center of the road on the right, had turned, meeting the automobile, when the automobile, running at a rapid rate swerved sharply to the left, inflicting the injuries complained of.

The following charges are noted as having been given for the defendant:

(13) The court charges the jury that as a matter of law it is unlawful and a violation of the law for a person, riding a motorcycle upon a public highway, to approach the intersection of said highway with another highway, without giving some signal of his approach, by blowing his horn or otherwise.

(11) The court charges the jury that under the law it was the duty of the plaintiff, on approaching the intersection of the road where the accident or injury is said to have occurred, to have had his motor vehicle under such control as that he could have stopped the same within a reasonable distance.

(18) The law imposes upon the plaintiff in this case the burden of proof; that is to say, before the plaintiff can recover, he must reasonably satisfy the jury, by a preponderance of the evidence, that he is entitled to recover under one or more of the counts of the complaint submitted to you, and, if he has failed to do so, your verdict should be in favor of the defendant.

(10) The court charges the jury that, if they believe from the evidence that the plaintiff's negligence or failure to exercise reasonable care in the slightest degree contributed to his injuries, he cannot recover in this case, unless you further believe from the evidence, that the defendant, at the time of the accident, was driving his car, or operating his car, in a wanton and reckless manner, or intentionally injured the plaintiff.

(9) The court charges the jury that, if they believe from the evidence that the injuries received by the defendant were proximately caused by his own negligence or want of care, he cannot recover under the first count of the complaint.

(15) If you believe from the evidence that the plaintiff was riding a motorcycle upon a public highway, and approaching the intersection of said highway with the highway upon which the defendant was operating his automobile at a high and dangerous rate of speed, so that the plaintiff could not control his said motorcycle, and that this conduct on the part of the plaintiff contributed even in the slightest degree to the accident, he cannot recover in this case under the first count of the complaint.

(7) I charge you that, if you believe from the evidence that the negligence of the plaintiff, as alleged in any of the pleas of contributory negligence, proximately contributed to his injuries, the plaintiff cannot recover under the first count of the complaint.

Harsh, Harsh & Harsh, of Birmingham, for appellant.

Pennington & Pou, of Jasper, for appellee.

THOMAS J.

The suit, for personal injury caused by a collision between defendant's automobile and plaintiff's motorcycle, resulted in a judgment for defendant. The complaint consisted of counts of simple negligence and for wantonness; the pleas were the general issue and contributory negligence.

Assignments of error, not duly insisted upon in argument, will not be considered. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

General rules of the road have been long recognized, and additional or auxiliary provisions, deemed necessary by the Legislature, have been added to meet the increasing and complicated volume of traffic by the old and new methods of transportation thereon. Morrison v. Clark, 196 Ala. 670, 72 So. 305.

Such of the provisions of the act of 1911 (page 634) that are penal or in derogation of the common law must be strictly construed. 25 R. C. L. p. 1056, § 281. Whether the provisions of sections 18 and 19 of that act are liberally or strictly construed, they have application immediately preceding and at the point of the collision-to the locus in quo of the injury, outside the limits of a city or an incorporated village, and at a point where, from the direction in which plaintiff approached the intersection of two roads, the operator of the motorcycle (according to his own evidence) was prevented by obstructions from seeing the defendant approaching the same point driving west along another and different road from that on which plaintiff was driving. The provisions of sections 18 and 19 of the act will not be construed to apply only to two roads that approach and intersect at right angles. There was no error in giving, at defendant's request in writing, charge numbered 13.

Charge numbered 11 is challenged by assignment of error and argument. Plaintiff, immediately approaching the point of collision, was required to use reasonable care and to have his motorcycle under such control as to be able to stop it promptly by the use of due diligence and appliances. Whether or not plaintiff proved that he complied with the requirements of the law, and discharged his duty under the circumstances of his approach to the point of collision, was a question for the jury. The use of the words "reasonable distance" in charge 11, as descriptive of plaintiff's duty in the premises, under the surrounding circumstances, as to his mode, method, or control of the motor vehicle being driven to the point of collision, did not render the charge unsusceptible of further explanation, if such was deemed necessary by counsel. Conceding that the proper test of the correctness of the charge was whether plaintiff used reasonable care in having his motorcycle under control and equipped with proper appliances when he approached the point of collision, under the circumstances indicated by the evidence, and not whether he had it under such control as that, without regard to latent defects in the mechanism of the machine, or in its device for slowing and coming to a stop, he could have stopped it within a reasonable distance, did not render the charge noxious, and so that it could not be explained by the court in the general or special charges.

The duty of a driver of a motor vehicle, discussed in White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479, is declared to be tested by the fact of whether or not the driver, at the time and place of, or immediately preceding the accident, was so observing his duty to others, and acting with due regard thereto, as that his reasonable and necessary acts or omissions in the operation of driving, controlling, or stopping the vehicle were those of an ordinarily prudent man under the same circumstances; that is, whether or not an ordinarily prudent man, under the same circumstances, would have conducted himself, or refrained from...