Morgan Hill Paving Co. v. Fonville

• Decision Date: 06 December 1928
• Docket Number: 6 Div. 17
• Parties: MORGAN HILL PAVING CO. v. FONVILLE.
• Court: Alabama Supreme Court

119 So. 610

218 Ala. 566

MORGAN HILL PAVING CO. v. FONVILLE.

6 Div. 17

Supreme Court of Alabama

December 6, 1928

Rehearing Denied Jan. 24, 1929

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action for damages for personal injuries by W.D. Fonville against the Morgan Hill Paving Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Requested charge to deny recovery for injuries by failure to maintain lights on detour sign, if sign contained lighted lantern held properly refused; question being whether light was sufficient.

Count 4 of the complaint is as follows:

4. The plaintiff claims of the defendants the sum of one hundred thousand dollars ($100,000.00) as damages, for that heretofore, on, to wit, the 17th day of December, 1925 plaintiff was a guest in an automobile, in the nighttime riding along a public highway, commonly known as the Montgomery Highway, at a point approximately three miles south from the town of Clanton, in Chilton county, Alabama. Plaintiff avers that the defendants erected and maintained a barricade, plank or other obstruction across or partly across said highway at said point. Plaintiff further avers that in an effort on the part of the driver of said automobile to avoid running upon, against or into said barricade, plank or other obstruction and thus greatly endangering the lives of the plaintiff and the other occupants of said automobile, the said automobile was wrecked or turned over, and plaintiff was thrown therefrom to the ground with great force, fracturing or breaking his spinal column in two places, breaking his left arm in two places, dislocating his liver and causing it to drop to a position in the region of the abdomen, and otherwise greatly shocking, bruising and injuring the plaintiff, both externally and internally.

Plaintiff avers that as a proximate consequence of said injuries he suffered much physical pain and mental anguish and will continue to suffer much physical pain and mental anguish for a long time to come, was caused to lose much time from his business or profession, and will continue to lose much time from his business and profession in the future, was permanently injured and rendered permanently less able to earn a livelihood, incurred heavy expense for medicines and medical, surgical and hospital service, all to the damage of the plaintiff in the sum herein sued for.

Plaintiff avers that his said injuries and damages were proximately caused by the negligence of the defendants in this: The defendants erected and maintained said barricade, plank or other obstruction across or partly across said public highway at said point, and negligently failed to have and maintain proper lights, signals or other warning of the presence of said barricade, plank or other obstruction across or partly across said highway at said point, and as a proximate consequence of said negligence, the said automobile in which the plaintiff was riding as a guest as aforesaid was wrecked or turned over, and plaintiff was injured, as hereinabove set out.

Pleas 3, 5, 6, and A are as follows:

3. This defendant further says the plaintiff should not recover in this suit, for that the plaintiff was injured along the public highway between Birmingham, Alabama, and Montgomery, Alabama, at a point about three miles south of Clanton, Alabama, along said highway; that the injuries of which the plaintiff complained were caused by reason of the automobile in which he was riding turning over upon the side of said highway; that just south of the point along said highway at which said automobile turned over, causing plaintiff's injuries, between said point and the town of Clanton, there was a detour road, and there was placed just south of said detour road a detour sign by the direction of the state highway department of the state of Alabama, which said sign was placed at, to wit, halfway of the paved portion of said highway; that for, to wit, 800 or 1,000 feet north of said detour road and detour sign, towards the town of Clanton, Alabama, there was a straight road; that as the automobile in which the plaintiff was riding approached this detour and detour sign along said highway, going in the direction of Montgomery, Alabama, said automobile was being driven by one George R. Dye; that it was in the nighttime, between 9 o'clock and 10 o'clock p.m.; that the said Dye, who was driving the automobile in which the plaintiff was riding, and as it approached the said detour and detour sign above referred to, at a dangerous and reckless rate of speed of, to wit, from 50 to 60 miles per hour, was maimed, in that his right arm was amputated between the wrist and the elbow leaving him without the use of the right hand, and his left hand had been injured in such sort that the said George R. Dye did not have the free use thereof; that, notwithstanding the dangerous and reckless rate of speed at which the said Dye was driving the automobile in which the plaintiff was riding, and notwithstanding the maimed condition of the said Dye while so driving said automobile, which facts were known to plaintiff, the plaintiff negligently failed to protest against the speed at which the said Dye was driving said car, and did not request the said Dye to cease driving at such dangerous and reckless rate of speed, and negligently continued to ride in said car while being so negligently driven by the said Dye. And this defendant further says that, as the direct and proximate result of the negligence of the said Dye in so driving said car at such reckless and dangerous rate of speed, the car was caused to run off of the pavement on said highway and was overturned, and in being so overturned the plaintiff was injured as complained of. And this defendant further avers that the negligence of the plaintiff in failing to protest and object to the said Dye driving the car in which he was riding at a reckless and dangerous rate of speed as aforesaid proximately contributed to the damage and injuries sustained by the plaintiff of which he complained.

5. Defendant, for further plea and answer to each count of plaintiff's complaint, separately and severally says that plaintiff should not have and recover in this case, for that the plaintiff was himself guilty of negligence which proximately contributed to his said alleged injuries and damages, and that his said negligence consisted in this: That the plaintiff was riding in an automobile which was owned and driven by one of his friends; that plaintiff and his said friends were en route from Birmingham to Montgomery over the Montgomery Highway for the purpose of fishing and hunting; that said highway was being paved at a point three to four miles south of Clanton, Alabama, and that in order to get from Clanton to plaintiff's point of destination it was necessary to detour where said highway was being paved, that is, turn out of said highway at a point about three miles south of said town of Clanton; that plaintiff knew that said highway was being so paved, and also knew that it would be necessary to leave said highway at the said detour point, and that said point of detour was about three miles south of said town of Clanton, and that the said detour point would be marked by a detour sign placed on the right-hand side of said highway; and that notwithstanding such knowledge of all of said circumstances and conditions, the plaintiff voluntarily allowed himself to ride in said automobile and to be driven by one of his said friends, the owner of said automobile, along said highway in close and dangerous proximity to said detour point and said detour sign, at a high rate of speed greatly in excess of the legal rate of speed on said highway, to wit, 30 miles per hour, well knowing the danger to himself in attempting either to turn out and detour at said point at said rate of speed, or to attempt to pass around the said detour sign at said rate of speed; and defendant further avers that plaintiff negligently failed under said circumstances and conditions with the knowledge of said facts, to take any steps to secure a reduction of the speed of said automobile to a safe rate of speed under the said circumstances and conditions, as he could have done in the exercise of due care for his own safety, and as a proximate consequence of his said negligence, the said automobile ran so close and dangerously near said detour sign at said high rate of speed that it could not be turned into the said detour road at said detour sign, and in an effort to pass around the said detour sign at said high rate of speed the said car was turned over, thereby inflicting upon the plaintiff the said alleged injuries and damage.

6. Defendant, for further plea and answer to each count of plaintiff's complaint, separately and severally says that plaintiff should not have and recover in this case, for that the plaintiff was himself guilty of negligence which proximately contributed to his said alleged injuries and damages and that his said negligence consisted in this: That the plaintiff was riding in an automobile which was owned and driven by one of his friends; that plaintiff

and his said friends were en route from Birmingham to Montgomery over the Montgomery Highway for the purpose of hunting; that said highway was being paved at a point three to four miles south of Clanton, Alabama, and that in order to get from Clanton to plaintiff's destination it was necessary to detour where said highway was being paved; that is, turn out of said highway at a point about three miles south of said town of Clanton; that plaintiff knew that said highway was being so paved, and also knew that it would be necessary to leave said highway at the said detour point and that said point of detour was about three miles

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