McDermott v. Sibert

• Decision Date: 25 October 1928
• Docket Number: 7 Div. 795
• Citation: 119 So. 681,218 Ala. 670
• Parties: McDERMOTT v. SIBERT.
• Court: Alabama Supreme Court

119 So. 681

218 Ala. 670

McDERMOTT v. SIBERT.

7 Div. 795

Supreme Court of Alabama

October 25, 1928

Rehearing Denied Feb. 2, 1929

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action for damages for personal injuries by James E. McDermott suing by his next friend, J.A. McDermott, against Martin Sibert. Judgment for defendant, and plaintiff appeals. Affirmed.

Foster J., dissenting.

Goodhue & Lusk, of Gadsden, for appellant.

Hood &amp Murphree, of Gadsden, for appellee.

GARDNER J.

Plaintiff, a young man 19 years of age, was severely injured in an automobile accident while riding in a car with two of his young friends who had come from Alabama to Kentucky to visit him, Bob Forman, 17, and Martin Sibert, 18 years of age. It was a roadster car with one seat. The top was fastened down and the three were on this one seat. The car had been given Bob by his father for his own use, but on this particular occasion Martin Sibert was driving, and had done much of the driving on the trip. Sibert had been over the road more than once before and was familiar with the car and its operation. The three had been to London, Ky., on pleasure, and were returning from that point on the way to Barbourville, where plaintiff resided when the accident occurred. It was 9 o'clock at night, the weather dry, and whether moonlight or not they do not recall. The road was paved, straight, and level for quite a distance, and the lights on the car were burning, enabling the driver to see an object in the road 100 yards ahead. The speed of the car was between 25 and 30 miles per hour. Another car was ahead traveling in the same direction, and it moved to the right as Sibert, who was driving, blew the horn as a signal that he wanted to pass. The paved road was slightly narrower than the ordinary road, and there were "shoulders" on each side on which grass and weeds grew. At the place of the accident a large rock was embedded in the "shoulder" of the road, hidden from view by the grass and weeds, a portion of which was above the surface. In passing, and about the time the roadster reached the side of the car ahead, it ran onto a loose rock in the paved road, "just about the size of a football," causing the car to swerve to the left, and as Sibert attempted to turn it back into the paved road, the front axle struck the large rock on the side, hidden from view, causing the roadster to upset. Plaintiff was seated on the extreme right, Bob Forman in the center, and defendant at the steering wheel on the left.

Defendant was awake and sober, and there is no evidence of any dissipation on the part of either of the three. Bob Forman was also awake at the time of the accident. He and defendant appear not to have been seriously injured. Plaintiff fell asleep soon after leaving London, and was so soundly asleep that he could recall nothing of the accident, only regaining consciousness afterwards in the hospital. His injuries were of a serious nature, and he evidently suffered much pain. He was thrown entirely clear of the car. The other two were not.

Plaintiff's suit against Sibert for damages rests upon alleged negligent operation of the car, to which Sibert pleaded the general issue and (in short by consent) contributory negligence on plaintiff's part. These two issues were submitted to a jury, resulting in a verdict for the defendant, and from the judgment following, plaintiff prosecutes this appeal.

Sibert cannot recall whether or not he saw the loose rock in the roadway, and plaintiff rests his case of negligence against him largely upon the theory that he should have observed the rock, or, if he did see it, should have avoided contact with it.

Under the rule recognized in this state, a jury question was presented, though taking into consideration that the car was not being run at an improper speed or otherwise improperly operated, and that the loose rock lying in the paved highway was struck about the time the roadster was parallel with the car it was passing, it must be conceded negligence on defendant's part was slight.

There seems to be some insistence of evidence tending to show subsequent negligence on defendant's part for failure to apply the brakes upon striking the loose rock. The roadster traveled less than twice its length, some 20 to 25 feet, after striking the loose rock before the large rock on the side was struck. The accident occurred in a moment of time, and defendant was not, of course, aware of the hidden rock on the side. "Just as quick as he could turn it away, ... turn it, why it happened. *** It would be hard to say if the car slackened its speed any from the time we hit the first bump until we hit the other one and turned over. *** It seemed like it slackened some but it was all right there together, and was so sudden it would be hard to state exactly"--Bob Forman's testimony.

If there was any fault on the part of defendant in failing to apply the brakes (a question we need not consider), it clearly would constitute but a part of the initial negligence of defendant, and in no event does the evidence call for any application of the doctrine of subsequent negligence.

The trial court orally charged the jury upon the issue of contributory negligence, to which plaintiff reserved no exception, but defendant requested in writing charges directed to that issue, and the giving of these charges constitute the question of prime importance on this appeal.

It is the generally recognized rule that a person 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. Note to Chesapeake, etc., Tel. Co. v. Merriken, 41 A.L.R. 764; note to Campion v. Eakle, 47 A.L.R. 289. Many of the cited cases are suits by the passenger against third persons, but, as said by this court in McGeever v. O'Bryne, 203 Ala. 266, 82 So. 508:

"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."

The general rule, as above stated, was recognized and discussed in Birmingham Ry., L. & P. Co. v. Barranco, 203 Ala. 639, 84 So. 839, where it was said, speaking of the duty of due care on the part of the guest or passenger:

"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 case of Birmingham Southern R.R. Co. v. Harrison, 203 Ala. 284, 82 So. 534, contains citations of authorities illustrating contributory negligence on the part of the occupant of a car driven by another, such as when the driver is known to be intoxicated, or incompetent, and driving recklessly, and the occupant fails to remonstrate but continues to ride. Numerous instances may be found also in the cases cited in the notes to 41 and 47 A.L.R., noted above.

In Central of Georgia Ry. Co. v. Jones, 195 Ala. 378, 70 So. 729, the pleas of contributory negligence attempted to charge plaintiff, the passenger, with duties primarily resting upon the driver of the vehicle, and in the discussion holding the pleas insufficient, the court said:

"Had the plaintiff known of the approach of the train and failed to warn the driver, who was unconscious of the danger, or had she discovered it in time to extricate herself and failed to do so, she could probably not recover under count 1."

Recognizing therefore, that there are certain duties arising on the part of the occupant of the car under given circumstances, there are authorities also to the effect that the occupant cannot abandon the exercise of his own...