Mobile Light & R. Co. v. Gadik

• Citation: 100 So. 837,211 Ala. 582
• Decision Date: 29 May 1924
• Docket Number: 1 Div. 274.
• Court: Supreme Court of Alabama
• Parties: MOBILE LIGHT & R. CO. v. GADIK.

100 So. 837

211 Ala. 582

MOBILE LIGHT & R. CO. v. GADIK.

1 Div. 274.

Supreme Court of Alabama

May 29, 1924

Rehearing Denied June 30, 1924.

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

Action by W. A. Gadik against the Mobile Light & Railroad Company to recover damages to an automobile by collision with a street car. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Harry T. Smith & Caffey, of Mobile, for appellant.

Smiths Young, Leigh & Johnston, of Mobile, for appellee.

BOULDIN J.

The action is for damages to an automobile from collision with a street car at a crossing in the city of Mobile.

The complaint contained one count for simple negligence and one for wanton injury, in the usual form. The pleas were the general issue and a special plea of contributory negligence to the first count.

The first question presented is whether defendant was entitled to the affirmative charge on the count for simple negligence.

At the time of the collision plaintiff was driving his automobile north on Warren street, and the street car was going west on Charleston street. Plaintiff's evidence tended to show he brought his car to a stop so close to the track as to be struck by the passing street car; that in approaching the track there was a "blind corner" on his right; that is to say, the corner building came out flush with the property line on both streets; that a shed extended out over the sidewalk to the curb line; and that this shed, and a horse and wagon standing near thereto, obstructed the view of the approaching street car on Charleston street. It is not disputed that plaintiff's view was unobstructed beyond the curb line, some 13 feet from the street car track. The point at which plaintiff could see the street car would depend to a degree on how far he was out in Warren street from these obstructions as he approached the crossing. Admittedly he passed a wagon between him and the curb;some evidence tended to show he was near the middle of Warren street. We suggest that plaintiff could see the street car as soon as the motorman could see the automobile. It was in the daytime. Plaintiff testified he could stop his automobile at the speed he was going within 12 or 13 feet. Taking plaintiff's view in considering the issue of contributory negligence, it appears he could have seen the street car in time to bring his automobile to a stop before reaching the point of collision. But it further appears without dispute that plaintiff did not look for an approaching street car but was looking straight ahead at a truck he was following, and choked his automobile down upon a signal of warning given from the truck. This failure to look was negligence. It is negligence also to pass a "blind corner" at such speed or in such manner that an automobile cannot be stopped after a street car can be seen approaching so near as to strike the automobile before it can cross the track. Due care demands that the automobile be under control at such a place.

The defendant was entitled to have the jury instructed that plaintiff could not recover for simple initial negligence because of his own negligence, provided it approximately contributed to the injury to his car. L. & N. R. R. Co. v. Williams, 172 Ala. 560, 55 So. 218; L. & N. R. R. Co. v. Turner, 192 Ala. 395, 68 So. 277; Bailey v. Southern Ry. Co., 196 Ala. 134, 72 So. 67; Ross v. Brannon, 198 Ala. 124, 73 So. 439; Anniston Electric & Gas Co. v. Rosen, 159 Ala. 195, 48 So. 798, 133 Am. St. Rep. 32.

This brings us to the question of negligence of the motorman after the discovery of peril of plaintiff's car. A count charging simple negligence in general terms authorizes a recovery on evidence of negligence after discovery of peril. In that event plaintiff's original negligence is not the proximate cause of the injury, but merely presents an occasion or condition upon which the defendant's negligence, after discovery of such condition of peril, becomes the sole efficient cause of the injury.

The law exacts a high degree of care of a motorman upon discovery of peril to persons or property at a public crossing-a care measured by the duty to protect life and property. He should be watchful, alert, and capable; must promptly use all the means known to persons of skill in his position to avoid an accident. The moment of time when these new duties begin cannot well be better defined than by the natural import of the words, "upon discovery of peril." An automobile seen approaching a crossing at a safe distance and at usual speed does not within itself suggest peril. The driver may be taken to have the use of his senses, and to exercise the ordinary care which the occasion demands. But, if the automobile continues to approach without slowing up, or the driver is seen to be inattentive, so that the situation suggests a probable collision unless prompt measures are taken, the duties of the motorman begin. One of the duties is usually to give a warning signal. If the automobile driver appears inattentive to the approach of the street car, this is an urgent duty. It should be given before it is too late to avoid a collision. If the motorman sees he cannot stop his street car short of the point of collision, the giving of warning signals becomes more imperative.

In the case at bar there was evidence that the motorman saw plaintiff's automobile when 25 to 40 feet from the point of contact. There was evidence that the motorman did sound the gong and otherwise strive to prevent the accident, and that plaintiff ran his car into the side of the street car but there was evidence that no signal of warning was given. Without discussing other features of the evidence, this feature made a case for the jury on negligence after discovery of peril. The affirmative charge on count 1 was properly refused. Hines v. Champion, 204 Ala. 227, 85 So. 511; Armour & Co. v. Alabama...