Mobile Light & R. Co. v. McDonnell

• Decision Date: 22 December 1921
• Docket Number: 1 Div. 211.
• Citation: 207 Ala. 161,92 So. 185
• Parties: MOBILE LIGHT & R. CO. v. MCDONNELL.
• Court: Alabama Supreme Court

92 So. 185

207 Ala. 161

MOBILE LIGHT & R. CO. v. MCDONNELL.

1 Div. 211.

Supreme Court of Alabama

December 22, 1921

Rehearing Denied Jan. 19, 1922.

Appeal from Circuit Court, Mobile County; C. A. Grayson, Judge.

Action by Mary E. McDonnell against the Mobile Light & Railroad Company, for damages for injuries to an automobile. Judgment for the plaintiff, and the defendant appeals. Reversed and remanded.

A requested charge, in action for damages to automobile which collided with street car, that neglect by a street car company of a rule established for the protection or convenience of its passengers is not negligence supporting recovery for injury received by a stranger who relied on the performance of such duty, and on account of such reliance failed to exercise due diligence to keep a lookout for approaching cars, was in the alternative, and some of the alternatives were abstract, and the charge, as a whole, was argumentative, so that it was properly refused.

As a common averment to each count of complaint, and as a part thereof, plaintiff avers as follows:

"On to wit, the 7th day of June, 1920, the defendant owned a street railroad, some of the tracks whereof were built upon and along the public streets of the city of Mobile. One of said tracks extended from the intersection of Royal and Government streets, in the city of Mobile, westwardly upon and along Government street to Ann street, and westwardly therefrom; another of said tracks connected with said track on Government street at a point near the center of Government street and near Marine street, and extended thence across the south side of Government street to Marine street, and thence southwardly along Marine street, all of said streets being public streets of the city of Mobile and one of the defendant's street cars, while it was being operated upon defendant's said tracks, or one of them, by one of defendant's agents and servants, who was a motorman in the employ of the defendant, and had control of said car, and who was acting within the line or scope of his employment by the defendant, collided with the plaintiff's automobile while said automobile was on the south side of Government street, crossing or about to cross defendant's track leading from a point near the center of Government street to and along Marine street, as aforesaid, and bruised, strained, twisted, and broke the chassis, body, wheels, engine, and other parts of said automobile, and caused the plaintiff to lose the use of said automobile for a long period of time, and said automobile was thereby rendered valueless."

The averments of counts 1, 2, 3 and 4 sufficiently appear from the opinion.

In addition to the common averment, count 5 avers that, while acting within the line or scope of his employment by the defendant, said motorman, after the plaintiff's automobile was at a point where it could not, by the exercise of reasonable diligence by the chauffeur in charge thereof, be stopped by the means at his command, negligently caused or allowed defendant's said car to turn from the defendant's track upon Government street towards Marine street, and thereby negligently caused or allowed said car to collide with said automobile, to plaintiff's damage as aforesaid.

In addition to the common averment, count 6 avers that, at the time that said matters and things occurred, there was in force an ordinance of the city of Mobile, regulating traffic in said city, wherein it was provided as follows:

"Sec. 6. All vehicles turning are bound to look out for, and avoid other vehicles in motion, and shall be prepared for the stoppage or slowing down of the vehicle ahead."

"Sec. 8. Police, fire department, patrol, ambulance, and United States mail service vehicles shall have the right of way through any street and through any procession.

"Sec. 9. Subject to the foregoing section, all vehicles going in an easterly or westerly direction shall have the right of way over all vehicles going in a northerly or southerly direction."

"No motor vehicle shall be run at a speed greater than 15 miles per hour across and over street crossings or intersections, and shall turn the corners of streets at crossings at a speed of not more than 10 miles per hour, except that in crossing streets persons going northwardly or southwardly must slow their vehicles down to such a slow rate of speed as to enable them to avoid collision with vehicles going eastwardly or westwardly, which have the right of way."

"Sec. 20. The word 'vehicle' in these rules includes equestrians, led horses, and everything on wheels or runners using the streets."

And the plaintiff therein also avers that her automobile was, at the time that said matters occurred, moving east on Government street, and the defendant's car was turning south from Government street, into Marine street, and that the defendant's motorman, in charge of said car, negligently failed to look out for and avoid plaintiff's automobile, and by reason of said negligence caused or allowed said street car to collide with plaintiff's said automobile, to her damage as aforesaid.

In addition to the common averment count 7 avers that, while acting within the line or scope of his employment by the defendant, said motorman, after the plaintiff's automobile was at a point where said collision could not, by the exercise of reasonable diligence by the chauffeur in charge thereof, be avoided by the means at his command, negligently caused defendant's car to turn from the defendant's track upon Government street towards Marine street, and collide with said automobile, to plaintiff's damage as aforesaid.

In addition to the common averment, count 8 alleges the ordinance set out in count 6, and concludes as follows:

And the plaintiff avers that her automobile was, at the time that said matters occurred, moving east on Government street, and the defendant's car was turning south from Government street, into Marine street, and that the defendant's motorman, in charge of said car, negligently failed to look out for plaintiff's automobile, and, as the proximate result of said negligence, caused said street car to collide with plaintiff's said automobile, to her damage as aforesaid.

In addition to the common averments, count 9 sets out the ordinance set out in count 6, and concludes as follows:

And the plaintiff avers that her automobile was, at the time that said matter occurred, moving east on Government street, and the defendant's car was turning south from Government street, into Marine street, and that the defendant's motorman, in charge of said car, negligently failed to avoid plaintiff's automobile, and, as the proximate result of said negligence, caused said street car to collide with plaintiff's said automobile, to her damage as aforesaid.

The following are defendant's pleas as indicated:

(8) That the defendant had two tracks on Government street running substantially east and west, and that it had another track on Marine street running substantially north and south, which connected with the north track on Government street by means of a curve and a switch and that at the time of the collision the defendant's car was rounding said curve from Government street into Marine street on its way to the defendant's car barn, which is at the south end of the Marine street track, where its cars are kept when not used, and the plaintiff's chauffeur in charge of the said automobile would have known that the said car was rounding said curve if he had looked and listened for said car immediately before coming into dangerous proximity, but that, on the contrary, said chauffeur saw the said car in ample time to have enabled him to have avoided a collision therewith, either by stopping his automobile or passing behind the car, but instead of continuing to observe said car he negligently assumed that the said car would proceed out Government street, and continued to drive his automobile straight down Government street across the said curve on which said car was approaching, without taking the trouble to observe whether said car was proceeding out Government street or rounding the curve, until the car and the automobile had come so close that he could not avoid said collision, which negligence on the part of said chauffeur proximately contributed to said injury.

(11) That the driver of said automobile saw the car standing in the track on Government street at the switch leading into the curve that led down Marine street, or approaching said switch, and in close proximity thereto, when the said automobile was a sufficient distance from said curve to have enabled the chauffeur to have avoided the collison with said car, either by slowing the speed of his automobile or by passing behind the car, but, instead of keeping the car in view, so as to determine whether it was going around the curve or straight out Government street, the said chauffeur negligently failed to pay attention to the movements of the car, or to keep a diligent lookout to ascertain whether any car was rounding said curve, but proceeded to attempt to cross the said curve without keeping himself advised as to the movements of the car, and he thereby proximately contributed to his own injury.

(9) That at the time of the said collision there was in force and effect an ordinance in the city of Mobile which provided as follows: "All vehicles except when passing a vehicle ahead, shall keep reasonably near the righthand curb, and when overtaken by any vehicle shall bear off to the right as near to the curb as practicable, while the overtaking vehicle shall pass by the left side of the vehicle overtaken, and must then not return to the curb line until entirely clear of the overtaken vehicle." And the defendant avers...