Merrill v. Sheffield Co.

• Decision Date: 19 May 1910
• Citation: 169 Ala. 242,53 So. 219
• Parties: MERRILL v. SHEFFIELD CO. ET AL.
• Court: Alabama Supreme Court

53 So. 219

169 Ala. 242

MERRILL v. SHEFFIELD CO. ET AL.

Supreme Court of Alabama

May 19, 1910

Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.

Action by S. P. Merrill against the Sheffield Company and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

The following portions of the oral charge of the court were excepted to:

(A1) "The right of an electric street railway in the use of the street is equal to that of the traveling public. It has no exclusive right to the use of that portion of the street occupied by its track. It has, however, to a certain extent a right to the use of that portion occupied by its track superior to that of the traveling public, since the course of its cars in the street is a fixed one and confined to the tracks laid in the street."

(B2) "Owing to the higher rate of speed at which electric cars may be run, thus increasing the danger to the traveling public, those in charge of electric cars must exercise ordinary care, using such care as a reasonably prudent man would exercise, commensurate with the necessities of each case, having in view the instrument it is operating, the possibilities of danger from its operation, and due regard for the rights of others while on foot or in vehicles. So also, it is the duty of the traveling public to exercise ordinary care."

(C3) "The use of electricity as a motive power has increased the degree of care to be exercised by street railway companies and travelers, either on foot or in vehicles. Both are held to a higher degree of care than before its usage."

(E5) "It is essential, to constitute wanton negligence, that the act done or omitted shall be done or omitted with a knowledge and certain consciousness that injury will probably result, and this knowledge is not to be implied from the mere knowledge of the elements of a dangerous situation. To constitute wanton negligence, there must be a design purpose, or intent to do a wrong, or reckless indifference or disregard of the natural or probable consequences of the act done."

(F5) "The general principle of law is that, although the defendant has been guilty of negligence producing injury, yet if the plaintiff, by his own misconduct or negligence amounting to want of care, essentially contributed to produce the injury, he cannot recover on the counts in simple negligence."

The following charges were refused to the plaintiff:

(4) "It is the duty of the person operating the car to use all diligence in his power to avoid collision on the public streets of a city with vehicles, and if there is danger of a collision they must, if necessary, bring their cars to a full stop, and if they fail to do this, and by reason of such failure a collision does occur, and a person is injured thereby, they are guilty of negligence, and are responsible for all damages resulting therefrom."

(6) "If the jury believe from the evidence that the motorman did see the plaintiff in front of him, on or near the track, and did not, after seeing him, bring his car to a full stop, then you should find for the plaintiff, unless you further believe that, from the actions of the plaintiff in driving said vehicle, the motorman had reason to believe that plaintiff was out of all danger of a collision."

(12) "If the jury believe from the evidence that plaintiff was driving down Court street on November 24, 1904, and while so driving defendant's motorman approached plaintiff from the rear, operating a street car on defendant's track, and that said motorman did not keep a proper lookout for plaintiff, who was on or near said track, and that by a failure to keep such lookout plaintiff was knocked out of his vehicle by a collision with said car and injured, you must find for the plaintiff."

(7) "If the jury believe from the evidence that plaintiff in the vehicle he was driving was in plain view of the motorman when he started down Court street in his car, and that plaintiff was near the track or on the same, and that the motorman saw him, etc., or by the exercise of due caution might have seen him, and that said motorman did sound his gong and did slow down his car when he approached the plaintiff's vehicle, it was the duty of the said motorman to have brought said car to a full stop, and not to have proceeded until he was satisfied that he could continue along said track without danger to the plaintiff; and if the jury believe from the evidence that Beech, the motorman, brought his car almost to a full stop within a short distance from the vehicle of plaintiff, and then started said car again at a more rapid rate of speed, and then struck said vehicle and injured plaintiff, then said motorman was guilty of negligence, unless he had reason to believe, from the action of the plaintiff, and from the position of the vehicle at the time, that he could pass said vehicle in safety, and in this case you should find for the plaintiff, and assess his damages in such amount as you shall decide, not to exceed the amount sued for."

(17) "In determining whether or not the vehicle was driven along the track, or had turned into the street car track, you can consider the mode and character of the damage to the car and vehicle in arriving at a conclusion as to how the damage was inflicted, and the position of the parties and vehicles."

The following charges were given at the instance of the defendant:

(14) "The driver of a vehicle such as plaintiff was using in a public street on which a street railway is operated is bound to take notice of the conditions.

He knows that the street cars run on grooved tracks, and it is therefore impossible for the motorman to turn aside to avoid a collision with an object on the track; that the only means of avoiding a collision is by stopping the car; and that this cannot be done instantly. It is therefore negligent for the driver of a vehicle to suddenly turn directly in front of an approaching car, whether the car be coming from the direction in which he is driving or from the rear."

(30) "If Merrill had been exercising the proper care for his own safety, he would have driven along on that street at a safe distance from the street car track."

(31) "The accident in this case did not take place at a street crossing, but at a point on the street between street crossings; and I charge you that at that place the right of the street car company on that portion of the street necessary to the operation of its car was superior to the rights of Merrill at that place."

(35) "I charge you, gentlemen of the jury, that it was as much the duty of Mr. Merrill to keep a lookout for the street car, while he was driving along the track sufficiently near to be struck by the car passing along the track, as it was the duty of the motorman in charge of the car to keep a lookout for him."

(36) "I charge you, gentlemen of the jury, that where a person is driving sufficiently near to a street car track to be struck by the cars running upon the same, it is as much his duty to keep a lookout in both directions for approaching street cars as it is the duty of those in charge of the street cars to keep a lookout for him."

(38) "The court charges the jury that the undisputed evidence in this case is that the plaintiff drove sufficiently near to the street car track of the defendant to be struck by a car moving upon said track, and that he thus proceeded down said track without looking or listening to see whether a car was approaching from the rear, and I charge you, in so doing, that he was guilty of negligence which proximately contributed to his injuries, unless the jury find from the evidence that the motorman in control of said car failed to use all proper and reasonable efforts to avoid injuring him after discovering his position of peril."

Emmett O'Neal, for appellant.

Almon & Andrews, for appellees.

SIMPSON J.

This action is by the appellant, against the appellees, for damages resulting from injuries received by the plaintiff from a collision of the electric street car of the defendants with a vehicle which was being driven by the plaintiff.

The first assignment of error, insisted on by the appellant, is to the ruling of the court in sustaining the demurrer to the first count of the complaint. There was no error in sustaining said demurrer. While it is true, as contended by appellant, that mere general allegations of negligence have been held sufficient by this court, yet it is also true that if the complaint undertakes to state what the acts of negligence were, the facts stated must show negligence. In the first count, the acts of negligence are, that the motorman "failed to sound the gong or check or stop the car, as was his duty to do"; but the count does not allege that the plaintiff was in perilous proximity to the track, or that the motorman saw, or could have seen, his perilous position, or any other fact raising the duty on the part of the motorman to use the precautions mentioned. Mobile Light & R. Co. v. Bell, 153 Ala. 90, 45 So. 56; Birmingham Ry., Lt. & Power Co. v. Parker, 156 Ala. 251, 47 So. 138.

The third count alleges that the defendant recklessly and wantonly or intentionally caused said injuries and damages to plaintiff, in that defendant, through its agents or servants recklessly or wantonly or intentionally caused said collision. In addition to the fact that the charge in said count is that the wantonness, etc was the corporate act of the defendant, while the specification describes the acts of its servants, the count is also defective, because the charge is that the act was recklessly and wantonly done, while the specification is that it was recklessly or wantonly done. The word "reckless" is not the equivalent of "wanton" or "intentional." K. C.,...