Morrison v. Clark

Decision Date18 May 1916
Docket Number6 Div. 296
Citation196 Ala. 670,72 So. 305
PartiesMORRISON et al. v. CLARK.
CourtAlabama Supreme Court

Rehearing Denied June 30, 1916

Appeal from City Court of Birmingham; A.H. Alston, Judge.

Action by G.W. Clark against John M. Morrison and others, for damages for injuries in an automobile collision. Judgment for plaintiff and defendants appeal. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 450 Affirmed.

The pleadings and the facts sufficiently appear. The following charges are referred to in the opinion:

8. (Given for defendant.) The court charges the jury that if they believe from the evidence that the plaintiff negligently pulled his horse suddenly to the left without notice or warning to the driver of the automobile, while said automobile was so close to the buggy as not to admit of a change in direction by the driver of the automobile, and without reasonable opportunity upon the part of the driver of the automobile to avoid the collision, then you cannot find for plaintiff under the first count.

The following charges were refused to defendant:

16. I charge you that the law of the road requires a person driving along a public street or highway to keep to the right, and if you find that plaintiff was not as near the right side of the street or highway where the injury occurred at the time of the injury, and that this was the proximate cause of the injury, then you cannot find a verdict in favor of the plaintiff under the first count of the complaint.
11. The court charges you that if after a fair consideration of the evidence the mind of any one of you is left within a state of uncertainty and doubt so that you cannot reasonably decide whether defendant was guilty of the wrong charged in any count of the complaint, then your verdict must be for defendant.
4. If you believe the evidence in this case, you cannot find for plaintiff as to any alleged loss of service of his wife claimed to have been sustained by the plaintiff.
D. The court charges you that you cannot return a verdict in favor of plaintiff unless you find from the evidence that Gayhart was in charge of the automobile when the alleged injuries were sustained.
B. The court charges you, gentlemen, that if from the evidence you find the defendant had no desire for Truman Morrison and Gayhart to take out his automobile and run it on the occasion when the said injuries were inflicted, then your verdict should be for defendant.
E. Your verdict cannot be for plaintiff if you believe from the evidence that at the time of the alleged accident Gayhart and Truman Morrison were running the defendant's automobile without regard to defendant's wishes or desires whether they should run it or not.

Allen Fisk & Townsend, of Birmingham, for appellants.

Harsh Harsh & Harsh and R.B. Kelly, all of Birmingham, for appellee.

THOMAS J.

The case was tried on a simple negligence count, charging that:

"While plaintiff and his wife, Sarah E. Clark, were in a vehicle, to wit, a buggy, upon a public highway in the city of Birmingham, Ala., an automobile being operated by defendant ran into, upon, or against said vehicle in which plaintiff and his said wife were, and as a proximate consequence thereof, etc. *** Plaintiff alleges that said automobile ran upon or against or into said vehicle in which plaintiff was on the occasion aforesaid, and plaintiff suffered the personal injuries and damage to himself and damage and loss to his said property, and the consequent damage and loss to him from the said injuries and damage to his said wife, all as a proximate consequence of the negligence of defendant, in this, to wit, defendant negligently caused or allowed said automobile to run upon or against or into said vehicle on the occasion aforesaid."

The second count, charging a willful and intentional injury inflicted by the defendant's servant or agent, failed to aver that such servant or agent of the defendant, having charge or control of said car at the time of the infliction of the injury, was acting within the line and scope of his employment by the defendants. This defect was taken by demurrer that should have been sustained. Addington v. Amer. Casting Co., 186 Ala. 92, 64 So. 614; Wise, Adm'r, v. Curl et al., 177 Ala. 324, 58 So. 286; Daniels v. Carney, 148 Ala. 81, 86, 42 So. 452, 7 L.R.A. (N.S.) 920, 121 Am.St.Rep. 34, 12 Ann.Cas. 612; Ala. Gt. Sou. R.R. Co. v. Pouncey, 7 Ala.App. 548, 61 So. 601.

It is clear that the question whether the agent or servant in charge of the car at the time of the infliction of said injury was acting within the line and scope of his employment was correctly submitted for the decision of the jury. From the undisputed evidence it is likewise clear that the jury found for the defendant under the second count of the complaint, and that punitive damages were not awarded.

The evidence shows that by reason of the collision the plaintiff sustained the loss of $110 on his horse, $2 or $3 damage to the harness, $20 damages for the buggy that was destroyed, incurred a medical bill of $100 or more, and sustained loss of time from his labor, where he was earning $100 a month before the accident, or the value of his services in nursing his wife, on account of her injuries caused by the collision, for the period of about three months. Thus it is clear, that the verdict for $250 was on the first count, for the actual damages of the plaintiff sustained and claimed, and not on the second count, for punitive or exemplary damages. We are of opinion, from the entire record, that the defendant was not injuriously affected in his substantial rights by the ruling on demurrer and the refusal to give charge No. 2.

Adverting to the first count, in which is the averment that the "defendant negligently caused or allowed said automobile to run upon or against or into said vehicle on the occasion aforesaid," in City Del. Co. v. Henry, 139 Ala. 161, 34 So. 389, this court held that as to simple negligence, an averment that the "defendant" did the wrongful act could be maintained by proof that defendant's servants or agents did the act of negligence, while acting within the line and scope of their employment by the defendant. 31 Cyc. 1626. Moreover, there was no objection to the evidence on the ground of a variance; therefore the court could not be put in error. Circuit Court rule No. 34, 175 Ala. xxi.

If, then, there was evidence to warrant the jury in drawing the inference that the wrongful act was committed by the defendant acting through servants or agents who, at the time, were in the discharge of the master's business, and were acting within the scope of the employment, then the affirmative charges requested by the defendant, as A and 1, were properly refused.

When there is evidence which tends to establish the plaintiff's case, the court should not withdraw the cause from the jury. Tobler v. Pioneer Mining & Mfg. Co., 166 Ala. 517, 52 So. 86; McCormack v. Lowe, 151 Ala. 313, 44 So. 47; M., J. & K.C. R.R. Co. v. Bromberg, 141 Ala. 258, 37 So. 395; Shipp v. Shelton, 69 So. 102; Amerson v. C.C. & I. Co., 69 So. 601; Holmes v. Bloch, 71 So. 670; L. & N.R.R. Co. v. Jenkins, 72 So. 68. An examination of the evidence shows that this question of fact was properly submitted to the jury.

The tendency of the evidence in the case at bar is more nearly analogous to that in Levine v. Ferlisi, 68 So. 269, being different from that in the cases of Parker v. Wilson, 179 Ala. 361, 69 So. 150, 43 L.R.A. (N.S.) 87, and Armstrong v. Sellers, 182 Ala. 582, 62 So. 28.

Observance of the rule of the road is becoming more important, with the increasing use of steam, electric, and motor power vehicles on the public highways. Berry on Automobile Law, § 119; Parker v. Wilson, supra; Gen.Acts 1911, pp. 640-642. In Shearman & Redfield on the Law of Negligence, vol. 3 (6th Ed.) § 649, it is said:

"It is a universal custom under law in America for travelers, vehicles, and animals under the charge of man, to take the right hand of the road when meeting each other, if it is reasonably practicable to do so; and this rule, meaning that one should seasonably take the right hand, is enforced by statute in many states, so far as it relates to travelers in vehicles or on horseback. The statutes upon this subject generally prescribe that travelers shall pass to the right of the 'center of the road.' This means the center of the lawfully worked part of the road. No one is bound to leave that part of the road while there is room for other travelers to pass upon it, even though the smooth part be entirely on one side of the road."

It is generally accepted that vehicles, whether automobiles, horse-drawn conveyances, or bicycles, when meeting on the highways, must turn seasonably to the right of the center of the traveled portion of the highway in order to give each other room to pass. Slaughter v. Goldberg et al., 26 Cal.App. 318, 147 P. 90. A driver may use any part of the highway except under special circumstances, and when meeting another vehicle or a person. At the time of such meeting and passing, the duty of each to the other is to keep to the right. Giles v. Ternes, 93 Kan. 140, 145, 143 P. 491; Ternes v. Giles, 93 Kan. 435, 144 P. 1014; Segerstrom v. Lawrence, 64 Wash. 245, 247, 116 P. 876. Each has a right to presume that the other will obey the rule of the road in meeting and passing. Medlin v. Spazier, 23 Cal.App. 243, 137 P. 1078; 29 Cyc. 516.

Where however, a collision occurs in such passing on the highway, the presence of one on the left side of the road may be explained or justified as the particular circumstances or exigencies of the case may warrant. Johnson v. Small, 5 B.Mon. (Ky.) 25; 3 Shearman & Refield on Neg. § 649; Elliott on Roads and...

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