Mobile City Lines, Inc. v. Proctor, 1 Div. 781

CourtSupreme Court of Alabama
Writing for the CourtCOLEMAN; LIVINGSTON
Citation272 Ala. 217,130 So.2d 388
Decision Date25 May 1961
Docket Number1 Div. 781
PartiesMOBILE CITY LINES, INC. v. J. A. PROCTOR.

Page 388

130 So.2d 388
272 Ala. 217
MOBILE CITY LINES, INC.
v.
J. A. PROCTOR.
1 Div. 781.
Supreme Court of Alabama.
May 25, 1961.

[272 Ala. 219]

Page 391

Johnston, McCall & Johnston, Mobile, for appellant.

[272 Ala. 220] Brown & White-Spunner, Mobile, for appellee.

COLEMAN, Justice.

This is an appeal from a judgment for the plaintiff in an action for personal injury sustained as a result of a collision between plaintiff, as a pedestrian, and a bus owned and operated by defendant.

The injury occurred in Mobile, on Springhill Avenue at a point approximately one hundred feet west of the intersection of Springhill Avenue and Broad Street. These streets do not cross at right angles. Springhill runs somewhat north of west, but we will speak of it as running east and west. The injury did not occur at a street intersection or at a crosswalk for pedestrians. The hour was approximately 6:30 p. m. and it was dark. We understand, however, that the area was well lighted.

There are six lanes in Springhill Avenue for vehicular traffic, three for eastbound traffic and three for westbound traffic. Each lane is ten feet wide. The westbound lanes are north of the center line of Springhill Avenue. The injury occurred at or near the south line of the northernmost lane, that is, the lane on the extreme right for westbound traffic.

The White Swan Laundry is located on the south side of Springhill Avenue opposite or nearly opposite the point of impact. Plaintiff had been to the laundry. He testified that he came out of the laundry carrying bundles, turned east, saw that he 'had the light' at the intersection of Broad and Springhill, and proceeded northwardly across Springhill. He walked between eastbound cars which were stopped on Springhill, came to the center line, saw that he still had the light, 'crossed on over and went in a northwest direction from the center line towards the curb and I was struck down by a bus as I was crossing.' He never saw the bus.

It appears that the bus had been proceeding north on Broad, had stopped at the intersection of Broad and Springhill and, when the light changed, had turned left into Springhill and proceeded west in the northernmost traffic lane next to the curb.

Plaintiff testified that there were eastbound cars stopped on Springhill but that he did not observe any westbound traffic north of the center line when he crossed it; that he crossed two lines and 'almost approached the curb on the north side of the street when I was struck down and I didn't see anything coming to my right.'

The bus driver testified that when he first saw the plaintiff, the plaintiff was on the left-hand side of the bus. The driver saw plaintiff out of the left window of the bus by the driver's seat. Plaintiff was coming into the side of the bus. The driver estimated that he was 'a foot or two' away from plaintiff 'from the time you first saw him to the point of impact.' The driver applied brakes immediately when he saw plaintiff coming into the bus. It traveled approximately four feet after the impact. Driver did not blow horn.

Another witness testified that when plaintiff's 'body hit the bus it made a turn and he fell face first and by the time he fell

Page 392

the bus was stopped and his feet were at the front wheel of the bus.' His head was 'more up Springhill Avenue.' His feet were approximately at the center of the wheel. The distance from the front bumper of the bus to the front axle is six feet six inches.

Two city detectives were in a car traveling east in the eastbound lane next to the center line of Springhill Avenue. They observed the collision. One detective testified that he was 'twelve, fifteen feet, maybe a little more,' from the plaintiff when the witness first saw the plaintiff; that he, the witness, observed the bus prior to observing plaintiff and did not see plaintiff until he was 'at the side of the bus'; that the bus was traveling twelve to fifteen miles per hour; and that plaintiff came in contact with bus on the left side above the front fender, 'between where the front fender [272 Ala. 222] comes around the wheel and the front of the bus.' The bus front headlights were burning. The bus driver testified that other bus lights were also burning.

The case was tried on one count charging simple negligence on the part of the defendant's driver and pleas of the general issue and contributory negligence.

Assignments 1 and 2.

Defendant argues that the court erred in refusing the affirmative charge with hypothesis requested by defendant. Defendant says this was error because the evidence fails to show that the bus driver was guilty of any negligence and further because the evidence shows without dispute that plaintiff was guilty of contributory negligence which proximately caused his injury.

Plaintiff says that the evidence shows that the bus driver was guilty of negligence in that he failed to keep a proper lookout, that the evidence supports a reasonable inference that the negligence of the driver proximately caused the injury, and that the issues as to negligence of the bus driver and contributory negligence of the plaintiff were properly submitted to the jury.

In determining whether the affirmative charge should have been given for defendant, we must consider the evidence in its aspect most favorable to plaintiff; the burden is on the plaintiff to establish negligence by affirmative proof; and negligence will not be inferred by the mere showing of an accident resulting in personal injury. Howell v. Roueche, 263 Ala. 83, 81 So.2d 297.

As we understand plaintiff's brief, he does not claim any right to recover for subsequent negligence.

Plaintiff was crossing at a point other than within a marked crosswalk or within an unmarked crosswalk at an intersection and was enjoined by statute to yield the right of way to all vehicles on the roadway. Section 16, Act No. 516, 1949 Acts, page 743; Pocket Parts, Code 1940, Title 36, § 58(16). Notwithstanding plaintiff's statutory duty to yield the right of way, the bus driver was under a duty to exercise due care to avoid colliding with any pedestrian on the roadway and to sound the horn when necessary and to exercise proper precaution upon observing any child or confused or incapacitated person on the roadway. Section 17, Act No. 516, supra; Title 36, § 58(17). Prior to the statute, this court had said it is a well-established general rule that a driver of an automobile owes a duty to pedestrians to look and reasonably care for the rights of others upon the public highway, not only at street crossings, but between intersections thereof. Shafer v. Myers, 215 Ala. 678, 680, 112 So. 230.

We are of opinion that this case is distinguishable from cases cited by defendant involving pedestrians injured by motor vehicles, where the court held that the affirmative charge with hypothesis should have been given for defendant in actions charging simple negligence. In Howell v. Roueche, supra, the injury occurred in a parking lot where the driver was not on notice that children were likely to be present

Page 393

and the driver did not see the child until after the injury. In Burr v. Munson, 209 Ala. 362, 96 So. 235, the pedestrian, a woman, moved from center of roadway into the car and defendant did not see the pedestrian until after the injury. The distance she moved does not appear from the opinion. The opinion states that there was no evidence that defendant either drove the car against her or negligently permitted the car to strike her. Apparently the facts were such that no inference could be drawn that defendant negligently failed to keep a lookout, whereas in the instant case we think the evidence does permit such an inference. In Newman v. Katz, 112 N.J.L. 49, 169 A. 643, as defendant's truck was crossing the crosswalk, plaintiff, when out of the line of defendant's vision, stepped off curb, took three steps, and walked into the side of defendant's truck about midway of its right side.

[272 Ala. 223] In the case at bar we are of opinion that the issues were for the jury as to whether the bus driver was negligent in failing to keep a lookout and in exercising due care, and whether his negligence, if such there was, proximately caused plaintiff's injury; and also, it was for the jury to say whether plaintiff exercised due care for his own safety, and if he did not, whether his own negligence proximately contributed to the cause of his injury. Accordingly, we hold that the court did not err in refusing the affirmative charges requested by defendant.

Assignment 3.

Defendant assigns as error the action of the court in overruling objection to a question propounded by plaintiff to his witness, Dr. Yeager, as follows:

'Q. Now did you find...

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45 practice notes
  • General Motors Corp. v. Edwards
    • United States
    • Supreme Court of Alabama
    • November 15, 1985
    ...the act. City of Mobile v. Havard, 289 Ala. 532, 268 So.2d 805 (1972); Aggregate Limestone Co., supra; Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961); Morgan v. City of Tuscaloosa, 268 Ala. 493, 108 So.2d 342 (1959); Louisville & N.R. Co. v. Maddox, 236 Ala. 594, 183......
  • Black Belt Wood Co., Inc. v. Sessions
    • United States
    • Supreme Court of Alabama
    • October 3, 1986
    ...unforeseeable event, the causal connection between the alleged negligence and the injury is broken. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961); Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378 Vines, at 1339 (emphasis added.) In this case, Black Belt......
  • State v. Dunlap, 1 Div. 157
    • United States
    • Supreme Court of Alabama
    • May 5, 1966
    ...or refusing requested written charges may be reviewed on appeal without a motion for a new trial. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 226, 130 So.2d The rule applied by the majority in the instant case is not a rule of property. It is not even a rule which applies in trial cou......
  • Wayland Distributing Co. v. Gay, 6 Div. 820
    • United States
    • Supreme Court of Alabama
    • September 9, 1971
    ...as well as the issue of the proximate cause of the accident, were questions for the jury to determine. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388. The court did not err therefore in refusing the affirmative charge on the theory that Gay was contributorily negligent as a......
  • Request a trial to view additional results
45 cases
  • General Motors Corp. v. Edwards
    • United States
    • Supreme Court of Alabama
    • November 15, 1985
    ...the act. City of Mobile v. Havard, 289 Ala. 532, 268 So.2d 805 (1972); Aggregate Limestone Co., supra; Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961); Morgan v. City of Tuscaloosa, 268 Ala. 493, 108 So.2d 342 (1959); Louisville & N.R. Co. v. Maddox, 236 Ala. 594, 183......
  • Black Belt Wood Co., Inc. v. Sessions
    • United States
    • Supreme Court of Alabama
    • October 3, 1986
    ...unforeseeable event, the causal connection between the alleged negligence and the injury is broken. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961); Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378 Vines, at 1339 (emphasis added.) In this case, Black Belt......
  • State v. Dunlap, 1 Div. 157
    • United States
    • Supreme Court of Alabama
    • May 5, 1966
    ...or refusing requested written charges may be reviewed on appeal without a motion for a new trial. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 226, 130 So.2d The rule applied by the majority in the instant case is not a rule of property. It is not even a rule which applies in trial cou......
  • Wayland Distributing Co. v. Gay, 6 Div. 820
    • United States
    • Supreme Court of Alabama
    • September 9, 1971
    ...as well as the issue of the proximate cause of the accident, were questions for the jury to determine. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388. The court did not err therefore in refusing the affirmative charge on the theory that Gay was contributorily negligent as a......
  • Request a trial to view additional results

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