McCray v. Sharpe

• Decision Date: 07 November 1914
• Docket Number: 567
• Citation: 66 So. 441,188 Ala. 375
• Parties: McCRAY v. SHARPE.
• Court: Alabama Supreme Court

66 So. 441

188 Ala. 375

McCRAY v. SHARPE.

No. 567

Supreme Court of Alabama

November 7, 1914

Appeal from Law and Equity Court, Hale County; Charles E. Waller Judge.

Action by Dolly McCray, by her next friend, against S.C. Sharpe. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Brown &amp Ward, of Tuscaloosa, and J.H. James, of Greensboro, for appellant.

Thomas E. Knight, of Greensboro, for appellee.

McCLELLAN J.

Action for damages, by appellant against appellee, for alleged tortious conduct or omission by a driver of an automobile in a public highway, in consequence of which a horse, then being driven by plaintiff, was frightened, injuring plaintiff.

Apart from provisions of the act, approved April 22, 1911 (Acts 1911, pp. 634-650), relative to the regulation, etc., of automobiles operated in this state, common-law principles exact of persons operating such vehicles--capable as they readily are of inflicting injury and damage to persons and property on public thoroughfares--the exercise of reasonable care to avoid injury to others traveling along the highway. Since the operators of automobiles have the right to use the highways in common with other persons otherwise lawfully using the highways, such operators of automobiles are only liable for the consequences of negligence in respect of the enjoyment of the common right stated. Berry's Law of Autos., § 149; Christy v. Elliott, 216 Ill. 31, 74 N.E. 1035, 1 L.R.A. (N.S.) 215 et seq., and note, 108 Am.St.Rep. 196, 3 Ann.Cas. 487; Huddy's Law of Autos., p 84 et seq. In Murphy v. Wait, 102 A.D. 121, 92 N.Y.Supp. 253, it was said:

"The rule of the common law is, and always has been that while a person might travel the highway with a conveyance or a loaded vehicle liable to frighten horses, yet he must, while doing so, exercise reasonable care to avoid accident and injury to others traveling along such highway."

While reasonable, ordinary care must be exercised, what consists on occasion with that requirement must vary and must depend upon the circumstances of the particular case. Author., supra.

In section 19 (page 641) of the act before mentioned, it is provided:

"A person operating or driving a motor vehicle shall, on signal by raising the hand, from a person riding, leading or driving a horse or horses or other draft animals bring such motor vehicle immediately to a stop, and, if traveling in the opposite direction remain stationary so long as may be reasonable to allow such horse or animal to pass, and if traveling in the same direction, use reasonable caution in thereafter passing such horse or animal, provided, that in case such horse or animal appears badly frightened or the person operating such motor vehicle is so signaled to do, such person shall cause the motor of such vehicle to cease running so long as shall be reasonably necessary to prevent accident and insure the safety of others."

The complaint as amended contained eight counts. Generally classifying them: Some declared for liability upon initial simple negligence; others upon initial willful or wanton misconduct or omission of the driver or his representative others as upon simple negligence after the fright of the animal became apparent; and others as upon willful or wanton misconduct or omission after fright of the animal became apparent. A part of the counts ascribe the duty breached to common-law exaction, and the others to the duty imposed upon occasion, by the statute, as quoted above. There being evidence introduced, admitted, in support of material averments of all the counts of the amended complaint, and after plaintiff had concluded the presentation of her evidence, the trial court sustained a defendant's motion to exclude all of the evidence so admitted. Thereupon, in response to evident necessity, the plaintiff took a nonsuit with a bill of...