Newell Contracting Co. v. Berry

• Decision Date: 21 May 1931
• Docket Number: 8 Div. 232.
• Citation: 134 So. 868,223 Ala. 111
• Parties: NEWELL CONTRACTING CO. v. BERRY.
• Court: Alabama Supreme Court

134 So. 868

223 Ala. 111

NEWELL CONTRACTING CO. v. BERRY.

8 Div. 232.

Supreme Court of Alabama

May 21, 1931

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Action for damages for personal injuries by Irvin Berry against the Newell Contracting Company. From a judgment for plaintiff defendant appeals.

Affirmed.

See also, 134 So. 870.

White E. Gibson, of Birmingham, and W. H. Mitchell, of Florence, for appellant.

Bradshaw & Barnett, of Florence, for appellee.

GARDNER J.

Plaintiff, while approaching the city of Florence from the north in his car at night on the public road known as the "Jackson Highway," ran into defendant's truck which had been left on the roadway and received serious injuries. Hence this suit.

The negligence relied upon was the violation of the statute requiring that a vehicle parked upon a highway whether attended or unattended during the period from a half hour after sunset to a half hour before sunrise shall have displayed thereon one or more lamps projecting a white light in front and a red light in the rear. Gen. Acts 1927, pp. 348, 387, 383, §§ 97 and 91 (a); Michie's Code, §§ 1397 (93) and 1397 (99); Chambers v. Cox (Ala. Sup.) 130 So. 416.

It is insisted the demurrer to the complaint should have been sustained, first, upon the theory the pleader has failed to aver the highway was a public road, and we are cited to the case of Stewart v. Smith, 16 Ala. App. 461, 78 So. 724. But there was there involved no statutory definition of highway as in the instant case. The statute that defines the above-noted restrictions contains a definition of the word "highway" as follows: "Every way or place of whatever nature open to the use of the public, as a matter of right, for purposes of vehicular travel. The term 'highway' shall not be deemed to include a roadway or driveway upon grounds owned by private persons, colleges, universities or other institutions." Gen. Acts 1927, pp. 363, 364, § 47 (n), Michie's Code, § 1397 (49). See, also, Dunn v. Gunn, 149 Ala. 583, 42 So. 683; 29 Corpus Juris, 364.

Leaving aside and undetermined any matter of judicial knowledge or the want of any specific assignment of demurrer taking the point, we think, in view of the foregoing definition found in the statute alleged to have been violated, that the averment as to the highway meets the requirements of good pleading.

The second objection to the complaint is the failure to aver a condition of darkness, requiring the use of lights on a parked truck. Appellant's argument may be well addressed to the question of proximate cause of an injury, but it does not answer the plain language of the statute, which requires such lights on such parked vehicles "a half hour after sunset to a half hour before sunrise." The added words "and at any other time when there is not sufficient light to render clearly discernible any person on the highway at a distance of two hundred feet ahead," were not intended as a limitation upon the preceding language, but rather an enlargement thereof. This insistence is likewise not well taken.

Nor is there merit in the contention the affirmative charge was due defendant upon the theory that in a legal sense the truck was not parked on the highway. Counsel cite 42 Corpus Juris, 613 to the effect that the word...