McGough Bakeries Corp. v. Reynolds

Decision Date29 April 1948
Docket Number6 Div. 572.
PartiesMcGOUGH BAKERIES CORPORATION et al. v. REYNOLDS.
CourtAlabama Supreme Court

Rehearing Denied May 20, 1948.

Peach Caddell & Shanks, of Decatur, and St. John & St John, of Cullman, for appellants

Kenneth J. Griffith, of Cullman, and Julian Harris and Norman W. Harris, both of Decatur, for appellee.

The following charge was refused to defendant: 16. 'The court charges the jury that, if they believe from the evidence in this case that the way was clear for the defendant's automobile when the same was proceeding toward the point where the accident occurred, and immediately before it reached said point, then the driver in charge of said automobile, if he was otherwise free from negligence, had a right to reasonably indulge the presumption that no person would suddenly run from the side of the road into his line of travel.'

Charge B-5 is, in pertinent part, the same as charge 16.

LAWSON Justice.

Harold Reynolds, a young boy ten years of age, was killed on a public highway by a passing truck. The driver of the truck was James Hamilton, who was acting in the course and within the line and scope of his employment as servant, agent, or employee of the McGough Bakeries Corporation.

This suit was brought against Hamilton and McGough Bakeries Corporation by Tom Reynolds, father of Harold, to recover damages for the death of his minor son. § 119, Title 7, Code 1940.

The appeal is by both defendants from a judgment against them in favor of plaintiff in the amount of $5,000.

The one count in the complaint as amended charged simple negligence. The sufficiency of the amended complaint is not challenged here. In addition to the general issue, the defendants interposed pleas of contributory negligence as to the young boy was killed. The defendants also pleaded contributory negligence of the plaintiff. Plaintiff's demurrer was sustained to the pleas of contributory negligence of the boy, but was overruled as to the plea setting up the contributory negligence of the father.

The first insistence made by counsel for defendants (appellants) is that the trial court erred in sustaining plaintiff's demurrer to defendants' plea of contributory negligence of the young boy who was killed. We cannot agree with this contention. The demurrer was properly sustained.

The rule has long been established in this jurisdiction that children between the ages of seven and fourteen who are compos mentis are presumed to be incapable of contributory negligence, but a child between those ages may be shown by evidence to be capable of contributory negligence by showing that he possesses that discretion, intelligence, and sensitiveness to danger which the ordinary child possesses when he is fourteen years of age. Birmingham R. Light & Power Co. v. Landrum, 153 Ala. 192, 45 So. 198, 127 Am.St.Rep. 25.

The pleas of the defendant as to the contributory negligence of the ten-year-old boy were insufficient for failing to allege that he possessed that discretion, intelligence, and sensitiveness to danger which the ordinary child possesses when he is fourteen years of age. This is in accord with the holding of this court in the case of Indian Refining Co. v. Marcrum, 205 Ala. 500, 88 So. 445.

The rule announced in the Landrum case, supra, is not in accord with the rule in many other states, but it has stood undisturbed in this jurisdiction for more than forty years, in spite of efforts exerted to have us depart therefrom. See Cedar Creek Store Co. v. Stedham, 187 Ala. 622, 65 So. 984. We are not inclined to disturb it now. Among the many decisions of this court following the rule enunciated in the Landrum case, supra, are the following: White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479; Indian Refining Co. v. Marcrum, supra; Southern Exp. Co. et al. v. Roseman, 206 Ala. 681, 91 So. 612; Watson v. Ingalls, 218 Ala. 537, 119 So. 667; Graham v. Werfel, 229 Ala. 385, 157 So. 201; Patrick et al. v. Mitchell, 242 Ala. 414, 6 So.2d 889.

For eight years prior to his death Harold Reynolds lived with his father on a farm approximately three miles north of Cullman. The house in which the Reynolds family lived was approximately 300 yards west of U.S. Highway 81, a much-traveled thoroughfare which runs north and south. Harold entered school in the fall of 1943. At the time of his death he was in the third grade at Vinemont school. He was transported to and from school in a bus. During the school years 1943-1944 and 1944-1945 he boarded and left the bus at a point on the east side of Highway 81, which point was a little more than 300 yards east of his father's home. Thus, he had to cross the highway in order to enter the bus, as it approached him from the south. The entrance to the bus was on its right side. At the beginning of the school year 1945-1946 the route of the school bus was changed so that it proceeded in a southerly rather than a northerly direction. It then stopped on the west side of the highway. Consequently it was unnecessary for Harold to cross the highway to enter the bus or to go to his home after returning from school.

During his last year in school Harold had a friend and schoolmate, Kenneth Maddox, whose father's home was on the east side of the highway. The porch of the Maddox home was just a few feet from the east edge of the road. Harold frequently on holidays played with Kenneth Maddox at the latter's home. To get to Kenneth's Harold had to cross the highway.

On numerous occasions during the school year 1945-1946, when Harold reached the 'bus stop' before the bus arrived, he crossed the highway and went into the home of his friend, Kenneth Maddox. Counsel for defendants, on cross-examination of the plaintiff, Harold's father, brought out the fact that although plaintiff knew the highway was much-traveled, he not only approved of Harold crossing the highway to enter the Maddox home, but told him to do so as it gave him shelter from the cold and rain to which he would have been subjected otherwise when the school bus was late, as was often the case.

On the morning he was killed, Harold left his father's home shortly after 7:00 a. m. to catch the school bus. He walked alone. He did not wait for the arrival of the bus at the place on the west side of the highway where it usually stopped. It was a cold morning. Harold crossed the highway and went onto the porch of the Maddox home, where he was joined by Kenneth.

Harold left the porch, walking in a westerly direction. Kenneth remained on the porch. Just before Harold reached the east edge of the road his attention was attracted by a horn blown on a truck which was traveling in a southerly direction. Harold stopped and looked toward the north in the direction of the school bus, which was then within view. The truck driven by the defendant Hamilton was proceeding in a northerly direction at approximately thirty-five miles an hour. As the truck arrived in front of the Maddox home, Harold, still looking in a northerly direction, stepped onto the highway and was hit by the truck driven by Hamilton. He died about two hours after the accident.

Hamilton first saw Harold when he was about 100 feet south of him and when the boy was standing a few feet east of the highway. He saw that Harold was looking toward the north. According to Hamilton he did not slacken his speed until the youngster 'jumped out in front' of the truck. Then Hamilton applied the brakes and turned the truck sharply to the left. The front of the truck missed Harold but he was hit by the 'corner of the bed.' The truck was not equipped with a horn Although Hamilton saw that Harold had not seen his truck approaching, he did not decrease the speed of the truck until the young boy walked onto the highway, nor did he give any signal to warn Harold of the approaching truck.

Negligence, in a case such as this, is want of ordinary care; the doing of what a person of ordinary prudence would not do or the failure to do what a person of ordinary prudence would do under like conditions or circumstances, which act or omission proximately causes the result complained of. The circumstances of each case dictate the course of conduct demanded by ordinary care.

Section 36, Title 36, Code 1940, provides that every motor vehicle when operated upon a highway shall be equipped with a horn in good working order capable of emitting a sound audible under normal conditions for a distance of not less than two hundred feet. A violation of this regulation is made a misdemeanor.

A violation of said provision of the statute constitutes negligence. Clift v. Donegan, 237 Ala. 304, 186 So. 476. And whether this particular accident was attributable to a violation of this law as a proximate cause of the death of Harold Reynolds was a question for the jury. According to Hamilton's testimony, as before pointed out, he saw the young boy standing very close to the edge of the highway, looking in the opposite direction from which Hamilton was approaching. Hamilton knew that the truck was not equipped with a horn. He did not decrease his speed nor take any other preventive action until the boy came onto the highway. We think it clear that the evidence in this case presented a question for jury decision as to whether the conduct of Hamilton, the driver of the truck, was in consonance with the conduct of a reasonably prudent man. Watson v. Ingalls, 218 Ala. 537, 119 So. 667; International Harvester Co. v. Williams, 222 Ala. 589, 133 So. 270; Hampton v. Roberson, 231 Ala. 55, 163 So. 644; Reaves v. Maybank, 193 Ala. 614, 69 So. 137; Patrick v. Mitchell, 242 Ala. 414, 6 So.2d 889.

Contributory negligence on the part of the parent suing in this form of action is a good defense. Alabama Utilities Service Co....

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