McCloud v. Williams, 6 Div. 376

• Decision Date: 27 August 1952
• Docket Number: 6 Div. 376
• Citation: 257 Ala. 611,60 So.2d 339
• Parties: McCLOUD v. WILLIAMS.
• Court: Alabama Supreme Court

Page 339

60 So.2d 339

257 Ala. 611

McCLOUD v. WILLIAMS.

6 Div. 376.

Supreme Court of Alabama.

Aug. 27, 1952.

Parsons, Wheeler & Rose, Birmingham, for appellant.

London & Yancey, Geo. W. Yancey and Jas. E. Clark, all of Birmingham, for appellee.

The following charge was given at defendant's request:

'16. I charge you that at the time of the accident involved in this case it was unlawful, in the City of Birmingham, Alabama, for any pedestrian to cross any street at any place other than a street intersection, and in crossing any street at the intersection thereof with another street, such pedestrian must pass over that part of the street, included in the lines of the sidewalk projected and not diagonally.'

FOSTER, Justice.

This appeal is by plaintiff in a suit for personal injuries which were caused by an automobile driven by appellee against her as she was crossing Avenue F (or Sixth Avenue South) in Birmingham, where Omega Street intersects it on the north side, in what is called Titusville. Appellee was driving west on the north side of Avenue F, going toward the cemetery at about five o'clock in the afternoon in January. Her automobile lights were burning dimly. There was a rise in Avenue F about a block east of Omega Street, from whence appellee was traveling, but from the intersection a car approaching from the east was visible at that rise. Plaintiff testified she walked on the right side of Omega Street toward Avenue F; that when she got to the intersection she stopped and looked in both directions, and saw nothing coming from the west. She looked east and saw the lights of a car (evidently defendant's), which was not close, about a block away.

There is a parkway in the center of the street along Avenue F. Westbound traffic used a lane north of the parkway, while eastbound traffic used a lane south of the parkway. Where Omega Street extends across Avenue F the entrance on the north side is offset from that on the south side of the parkway. There is an opening in the parkway for passage from one side to the other as Omega Street intersects Avenue F.

Plaintiff further testified that when she saw the car coming from the east about a block away, the started walking toward the grass. She then saw the car about half way the block and began to run. There was other evidence that when plaintiff started to cross, the car was about half a block away. The lights were shining dimly and the car was traveling, according to one, about fifty to sixty miles an hour. Defendant said about thirty miles an hour; that she applied the brakes and the car was turned toward the left to avoid plaintiff, but did hit her. The car was stopped in about twenty feet after the collision.

This is a sufficient statement of the facts to illustrate the assignments of error insisted upon by appellant.

The first and third assignments of error are argued together in appellant's brief. The first assignment relates to a refused charge requested by plaintiff, 'that section 1239 of the General City Code of Birmingham, 1944, reads in part as follows,' then follows what purports to be restrictions as to speed in four paragraphs there copied as (a), (b), (3) and (6). The third assignment is with reference to a charge given at the request of defendant (in substance) that the section of the city code relating to a speed of fifteen miles per hour at a blind intersection as read by counsel for plaintiff has no application to this case.

The charge refused as copied in the first assignment is no more than a statement of how a certain section of the city code is phrased. It does not seek to apply it to the facts of this case, and could be refused for that reason without error. Francis v. Imperial Sanitary Laundry & Dry Cleaning Co., 241 Ala. 327(13), 2 So.2d 388; Smith v. Lilley, 252 Ala. 425(6), 41 So.2d 175.

The giving of the charge requested for defendant in the third assignment of error should be considered in the light of the facts most favorable to plaintiff. The fifteen mile feature of the ordinance referred to is a maximum speed limit when approaching within fifty feet of and when traversing an intersection of streets where the driver's view is obstructed: meaning that during the last fifty feet of his approach to such intersection he does not have a clear and uninterrupted view of the approach to the intersection and of the traffic upon the street entering it for a distance of two hundred feet from the intersection.

At the northeast corner of the intersection of Omega Street and Avenue F there was a small brick grocery store which probably obstructed defendant's view during the last fifty feet from Omega Street, leaving a clear view of less than two hundred feet from Omega Street.

Defendant does not claim that there was no such obstruction or that during the last fifty feet defendant was not traveling more than fifteen miles per hour.

Defendant invokes the principle that the fifteen mile limit does not benefit the plaintiff under the circumstances of this case. The rule is...