Mobile City Lines v. Orr

• Decision Date: 13 April 1950
• Docket Number: 1 Div. 373
• Citation: Mobile City Lines v. Orr, 253 Ala. 528, 45 So.2d 766 (Ala. 1950)
• Parties: MOBILE CITY LINES, Inc. v. ORR.
• Court: Alabama Supreme Court

Page 766

45 So.2d 766

253 Ala. 528

MOBILE CITY LINES, Inc. v. ORR.

1 Div. 373.

Supreme Court of Alabama.

April 13, 1950.

Johnston, McCall & Johnston, of Mobile, for appellant.

D. R. Coley, Jr., of Mobile, for appellee.

This ordinance was introduced in evidence by the plaintiff: '1347. Traffic stop signs to be obeyed.--At every street intersection at, against or adjacent to which there has heretofore been or may hereafter be erected and set up any traffic sign bearing the words 'Thoroughfare, Stop, City Ordinance,' or other words indicating that traffic is required to stop before entering or crossing the intersection toward which the vehicle is approaching, the driver or other person in charge of any vehicle which is approaching such intersection from the direction in which said sign may be facing shall bring said vehicle to a full and complete stop before entering with said vehicle into or upon the said street intersection, and it is hereby made unlawful for the driver or other person in charge of any such vehicle to drive or permit the same to run into, or upon, or across such street intersection without first bringing said vehicle to a full and complete stop.'

The following charge was given at plaintiff's request: '6. I charge you, gentlemen of the jury, that the law requires that one entering a public street, at, against or adjacent to which there has been erected a stop sign or sign with other words indicating that traffic is required to stop before entering or crossing the intersection towards which the vehicle is approaching, by the City of Mobile, shall bring said vehible to a full and complete stop before entering with said vehicle into or upon said street intersection, and it is, as a matter of law negligence for the driver of a vehicle to merely slow up but not come to a complete stop before entering the same.'

STAKELY, Justice.

William R. Orr (appellee) brought this suit against Mobile City Lines (appellant) to recover damages for personal injuries alleged to have been received when a motorcycle on which the plaintiff was riding collided with a bus of the defendant. The complaint consisted of two counts, count 1 being based on simple negligence and count 2 being for wilful or wanton injury. Both counts showed that the collision took place at the intersection of Old Shell Road and Catherine Street, public streets in the City of Mobile. The plea of the general issue was filed to both counts and a plea of contributory negligence to the first count. The court gave the affirmative charge as to count 2 at the request of the defendant. On the request of the plaintiff the court gave the affirmative charge as to the plea of contributory negligence interposed to count 1. The trial resulted in a verdict and judgment for the plaintiff. Motion for new trial was overruled by the court. The appeal is from the original judgment of the court and also from the judgment denying the motion.

On the morning of November 26, 1947 at about 7:30 a. m. the plaintiff was riding on a motorcycle, which was being operated by Melvin R. Tarver. Both the plaintiff and Tarver were seated on the motorcycle in the same seat. The plaintiff was sitting behind Tarver and was holding on to him around the waist. At the time of the accident they were travelling west on the Old Shell Road at the intersection of Catherine Street. Old Shell Road runs east and west and Catherine Street runs north and south. The defendant's bus was travelling south on Catherine street. The motorcycle and the bus collided in the intersection.

I. The appellant insists that it was entitled to the affirmative charge which it requested as to count 1 and which the court refused and further that in any event the verdict and judgment should have been set aside because contrary to the great weight of the evidence. We have considered these contentions with care but cannot agree. Testimony favorable to the plaintiff, Alabama Power Co. v. Buck, 250 Ala. 618, 35 So.2d 355, tended to show that the City of Mobile maintained 'stop' signs on Catherine Street indicating that traffic should come to a stop before entering Old Shell Road, that the bus pulled up at the Old Shell Road, on which the motorcycle was travelling, as though it would stop, but instead of stopping continued on its way without stopping across Old Shell Road, that the motorcycle which was on the right side of Old Shell Road tried to dodge the bus to go in behind it for which there was not sufficient room, that the motorcycle was running about twenty to twenty-five miles an hour and in trying to avoid the collision the driver of the motorcycle not only swerved to try to dodge the bus, but also applied the brakes on the motorcycle, that the collision took place on the right of the center line of Old Shell Road and that glass resulting from the collision was scattered all over the intersection.

II. It is argued that the court was in error in giving charge 6 requested by the plaintiff. The position is that the plaintiff, under this charge, relied upon the violation of a municipal ordinance for the purpose of proving negligence against the defendant and yet did not specially plead the city ordinance and allege its violation but instead relied on a general allegation of simple negligence. In other words it is claimed that the ordinance may be offered in evidence and its violation shown, though not specially pleaded, as a circumstance tending to show the defendant's negligence along with the other evidence, but unless specially pleaded the violation of a municipal ordinance is not negligence per se.

We find it unnecessary to analyze the foregoing contention. The plaintiff introduced in evidence the city ordinance which will appear in the report of the case. The proof also showed that Old Shell Road was at the time of the accident a thoroughfare by city ordinance. But in addition to the foregoing proof, under §§ 21 and 48, Title 36, Code of 1940 the local authorities within their jurisdiction were authorized to designate Old Shell Road as a main or through highway by erecting stop signs at the entrances thereto from intersecting highways. The proof showed that such stop signs were erected and were in place on Catherine Street at its intersection with Old Shell Road at the time of the accident. Presumptively the stop signs were properly and authoritatively so placed at this point. Harris v. Blythe, 222 Ala. 48, 130 So. 548. We think that charge 6 can be considered as based on the state statute. The oral charge of the court shows that the court so considered the matter. The rules of pleading do not require that facts be specially pleaded of which courts commonly take judicial knowledge. City Council of Montgomery v. Wright, 72 Ala. 411, 47 Am.Rep. 422. So a statute need not be specially pleaded. Kansas City, Memphis & Birmingham Railroad Co. v. Filippo, 138 Ala. 487, 35 So. 457. Accordingly there was no error in the action of the court in giving charge 6 on the point under discussion.

Of course the failure to comply with an ordinance or statute is not in every case an actionable wrong and before a plaintiff can recover there must be a causal connection...