McGeever v. O'Byrne

Decision Date12 June 1919
Docket Number6 Div. 801
Citation82 So. 508,203 Ala. 266
PartiesMcGEEVER v. O'BYRNE.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.

Action by H.P. McGeever against Fallon O'Byrne for damages for injuries resulting from an automobile collision. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Plaintiff was injured by being thrown from defendant's motorcar while riding therein as defendant's guest; the car at the time being on the crossing of Sixth avenue at Twentieth street in the city of Birmingham. The car was being driven by defendant at a speed of about 40 miles an hour on one of the main thoroughfares and crossings of the city, which was constantly used by motor and other vehicles and pedestrians when it collided with another car whose presence defendant did not observe until he was within 2 feet of it. Besides defendant, another man and two women occupied the single seat of the car, and plaintiff was seated in the doorway with his feet outside on the running board. Plaintiff and his brother were riding with defendant on his personal invitation, and after driving around to several places where all or some of them drank beer and other intoxicants, the two women were taken in, and the car was driven at a high rate of speed to the point of collision.

Counts 1, 2, and 3 charge that the defendant so negligently managed and operated the car that it collided with another car, and counts 4 and 5 charge that he so willfully or wantonly mismanaged or operated it that it collided with another car proximately inflicting the injuries complained of. The evidence shows without dispute that the defendant operated the car under the circumstances in a grossly negligent manner, and the only real issues in the case are presented by special pleas 3, 4, and 5, to which demurrers were overruled.

Plea 3 is as follows:

That plaintiff was guilty of contributory negligence which proximately contributed to cause his said injuries, in this to wit, defendant at the time of the accident was and for the distance of, to wit, a quarter of a mile, immediately preceding the accident, had been driving an automobile on and along one of the main streets in the city of Birmingham which thoroughfare intersected with other thoroughfares in the city of Birmingham, all of which thoroughfares were in frequent and constant use by motor vehicles and other vehicles and pedestrians, which facts were well known to plaintiff; that defendant, while so driving such automobile, was driving the same at an excessive and reckless rate of speed, to wit, at a speed of 40 miles an hour, and plaintiff, with the knowledge that such car was being so driven at such rate of speed, and with the knowledge that so to drive the same on such thoroughfare was attended with great danger, negligently sat on the front of said automobile with the door open and with his feet extending out and resting on the running board of said automobile when so to do was attended with great danger, which danger was known to the plaintiff, or was obvious to him, or was obvious to a man of ordinary prudence under like circumstances. And defendant avers that as a proximate result of the negligence of the plaintiff in riding in said car under said circumstances and in such position he received the injuries complained of.

Plea 5:

That plaintiff voluntarily assumed the risks of the injuries which he received, in this, to wit, that plaintiff, plaintiff's brother, and defendant, on the afternoon on which plaintiff was injured, went together in defendant's automobile to the Hillman Hotel, and the plaintiff and defendant took several drinks of whisky and beer; that from the Hillman Hotel, which was located in the city of Birmingham, plaintiff, plaintiff's brother, and defendant, in a joint enterprise and adventure, namely, the driving of said car to a place on Fifth avenue for the purpose of getting drinks and taking what is commonly called a joy ride, drove to a place located on the corner of Fifth avenue and Twenty-Fourth street in the city of Birmingham for the purpose of obtaining other drinks of intoxicating beverages; that at such place plaintiff and defendant obtained such other drinks, and that in furtherance of a further joint enterprise and adventure plaintiff, plaintiff's brother, and defendant, accompanied by two women whom they had met at said place of Fifth avenue, left said place together in an automobile; that said automobile had only one seat; that defendant, plaintiff's brother, and the two women were all seated upon said seat; that plaintiff voluntarily took his seat on the front of said car, leaving his legs and feet extending out of the open door on the running board of said car; that in such car in such position plaintiff and others left said house on the corner of Fifth avenue and Twenty-Fourth street at a reckless and dangerous rate of speed, and while traveling at such reckless and dangerous rate of speed, to wit, 40 miles an hour, to wit, a distance of a quarter of a mile from said place where said car had started from at such a dangerous and reckless rate of speed, the accident occurred which resulted in plaintiff's injuries. And defendant avers that plaintiff, with knowledge that defendant was under the influence of intoxicants and with knowledge that the car was loaded above its capacity, as herein above set forth, and that for this reason the driving of the car was rendered dangerous, and with the knowledge that the streets over which said car was being driven were frequently and constantly used by automobiles and other vehicles and pedestrians, willingly and voluntarily rode in such car under such conditions, and with the knowledge thereby assumed the risk of the injuries which he received.

Plea 4 avers the same facts as plea 3, and in addition that defendant at the time was under the influence of intoxicating liquors, and plaintiff, with knowledge that such car was being driven at such rate of speed and with knowledge that to so drive the same on such thoroughfare while defendant was under the influence of intoxicants was attended with great danger, knowingly and willfully rode in such car on such thoroughfare at such rate of speed without protest or objection, which it is alleged an ordinarily prudent man would not have done.

The grounds of demurrer to the several pleas may be grouped as follows: (1) They fail to show facts which in law constitute contributory or assumption of risk; (2) they fail to show that plaintiff had any control of the operations of the car or of the person who was operating it; (3) they show that defendant himself was in control of the car, and do not show any facts which cast upon plaintiff the duty of protesting or warning defendant against driving the car at the alleged high rate of speed; (4) they fail to show any relation of master and servant between plaintiff and defendant; (5) they fail to show or aver that plaintiff's alleged intoxication was a proximate cause of the injury. These demurrers were overruled.

The following part of the oral charge of the court was duly excepted to by the plaintiff:

In one of the defenses set up by the defendant as to the first, second, and third counts of the complaint charging simple negligence on the part of the defendant the defendant says that the plaintiff and the defendant were engaged in a joint adventure that day, that is, of riding in a machine, going from one place to another, for the purpose of getting drinks and for the purpose of enjoying a joy ride, and they were engaged jointly in that enterprise or venture, and that the plaintiff knew of the defendant's condition and of the circumstances under which the adventure was being carried out and executed, more fully set forth in plea No. 5. If you are reasonably satisfied from the evidence in this case that that is true, then the plaintiff would not be entitled to recover under the first, second, or third counts of the complaint charging simple negligence; but, though you might be reasonably satisfied from the evidence that the facts set forth in a defense of that sort are true, it would be no answer as a defense to wantonness on the part of the defendant, that is, if he so conducted himself as to show evidence of wanton conduct or wanton misconduct.

W.T. Stewart and Harsh, Harsh & Harsh, all of Birmingham, for appellant.

Percy, Benners & Burr, of Birmingham, for appellee.

SOMERVILLE J.

The evidence in this case shows without dispute that the defendant, O'Byrne, was guilty of gross negligence in driving his motorcar, loaded with passengers who were his invited guests, at a speed of approximately 40 miles an hour over a crossing of two of the main thoroughfares of the city of Birmingham. It appears also, without the possibility of any conflicting inference, that this reckless misconduct was the proximate cause of the collision with another car, which resulted in the plaintiff's injury.

The liability of the driver of a vehicle to a passenger guest for injury resulting from his lack of due care has been fully settled, and is not here disputed. Perkins v....

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