Perkins v. Galloway

Decision Date14 October 1915
Docket Number727
Citation69 So. 875,194 Ala. 265
PartiesPERKINS v. GALLOWAY.
CourtAlabama Supreme Court

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by Ira Perkins, as administratrix of the estate of William Perkins, deceased, against Charles Galloway. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Count AA is as follows:

Plaintiff, as administratrix of the estate of William Perkins, deceased, claims of defendant the sum of $25,000 as damages for that on or about the 4th day of July, 1913 plaintiff's intestate, while being carried as a passenger in an automobile owned by defendant, which automobile was then and there being run or operated by him along the Ashville and Gadsden public road, in Etowah county, Ala., was killed by said automobile. Plaintiff avers that the death of her intestate was proximately caused by the negligence of defendant in and about the management and operation of said automobile.

The demurrers raise the proposition that the count shows on its face that intestate was a mere licensee, and it is not averred that defendant wantonly, intentionally, or willfully killed deceased, nor is it averred that defendant was guilty of gross negligence. Other questions presented were pretermitted by the opinion.

Dortch & Allen and Inzer & Inzer, all of Gadsden, for appellant.

Culli &amp Martin, of Gadsden, for appellee.

THOMAS J.

The question presented by this appeal is the duty of the owner and driver of a motor car to use reasonable care in its operation, and not to unreasonably expose a guest to injury.

In Liggo v. Newbold, 23 Law Journal (1854) Exch. N.S 108-110, the facts were: The plaintiff had hired a cart to convey her furniture. After placing thereon the load, the plaintiff and defendant's driver got upon the cart. A wheel came off, and plaintiff and furniture were thrown therefrom, and plaintiff sustained by the fall a personal injury. Pollock, C.B., directed the jury that the defendant was not responsible for the personal injuries to the plaintiff; his contract being only to convey the furniture. Reviewing the case, Baron Parke said "The fact that the defendant was paid for the carriage of the goods, and not for the carriage of the plaintiff herself, is immaterial; the defendant being equally bound to take her carefully. Wilson v. Brett, 11 Mee. & W. 113, s.c. 12 Law J.Rep.N.S.Exch. 264. No doubt, a person who undertakes to provide for the conveyance of another is responsible, although he does so gratuitously."

This rule has been extended by many cases to one not a common carrier, who voluntarily undertakes to transport another, and makes such voluntary carrier responsible for injury to the person transported resulting from negligence, whether the service was for a compensation or was gratuitous. Harvey v. Deep River Logging Co., 49 Or. 583, 90 P. 501, 12 L.R.A. (N.S.) 131; Simmons v. Oregon R. Co., 41 Or. 151, 69 P. 440, 1022; Wagner v. Missouri Pac. Ry., 97 Mo. 512, 10 S.W. 486, 3 L.R.A. 156; 2 Shear. & R. Neg. (4th Ed.) § 491; Beach, Cont. Neg. (3d Ed.) § 165; Wood, R.R. Minor's Ed.), 1207; Wilton v. R. Co., 107 Mass. 108, 9 Am.Rep. 11; Edgerton v. R. Co., 39 N.Y. 227; Brennan v. R. Co., 45 Conn. 284, 29 Am.Rep. 679; Ry. Co. v. Scott's Adm'r, 108 Ky. 392, 56 S.W. 674, 50 L.R.A. 381; Waterbury v. R. Co. (C.C.) 17 F. 672, note; Mayberry v. Sivey, 18 Kan. 291; Baker v. Tibbits, 162 Mass. 468, 39 N.E. 350; Kerwhaker v. Cleveland & Co., 3 Ohio St. 172, 62 Am.Dec. 246; Kay v. Penn. R. Co., 65 Pa. 269, 3 Am.Rep. 628.

The rule in this state defining who are passengers and the liability of the carrier thereto is thus stated by Mr. Justice Somerville, in Lawrence v. Kaul Lumber Co., 171 Ala. 300, 55 So. 111:

"But, if the carrier is not a common carrier of passengers, and has not expressly contracted to carry in the particular case, a person entering upon its train and taking passage thereon might be, under various circumstances, either a passenger, a licensee, or a trespasser. If his presence is without the knowledge and consent of anyone in charge of the train, he is but a trespasser. If on the invitation, or with the knowledge and acquiescence, of such an agent, not authorized nor shared in by his principal--the carrier itself or its alter ego--such person would be but a licensee. *** If on the invitation, express or implied, of the carrier or its alter ego manager, or of any authorized agent, such person would be a passenger. *** In the last instance he could recover of the carrier for injuries suffered while a passenger and proximately caused by the simple negligence of the carrier; while in either of the other instances he could recover under a proper complaint only for the wanton negligence or willful wrong, *** including its failure to exercise due care to avert injury after the danger was apparent. McCauley v. Tenn. Co., 93 Ala. 356, 9 So. 611."

Mr. Babbitt, in "The Law of Motor Vehicles" (1911) § 262, says:

"In order to constitute the relation of carrier and passenger, no payment of a fare or toll is essential. Philadelphia & Reading R. v. Derby, 14 How. 468 [14 L.Ed. 502], was a case in which the railroad was carrying Derby gratuitously as an invited guest. Mr. Justice Grier says in this request concerning Derby that he 'was lawfully on the road at the time of the collision,' and that the duty of the railroad was, 'to carry him safely. *** It is imposed by the law, even while the service is gratuitous.' "

Davids' "Law of Motor Vehicles" (1911) p. 229, § 230, quotes the Appellate Division of the New York Supreme Court as follows:

"The contributory negligence of the driver or operator of the vehicle is not chargeable against the passenger. *** In such a case the passenger is to be judged by the duty that the law imposes upon him under the circumstances existing at the time of the accident."

In Berry's "Law of Automobiles," § 181, p. 177, it is declared that, where the plaintiff was a guest of the defendant, and was injured by the automobile in which they were riding being run at a high rate of speed around a curve which threw plaintiff out, and it is shown that the plaintiff was not in a position to direct the operation of the automobile, he is not bound by the demands of the other occupants that the operator maintain a high rate of speed. Routledge v. Rambler Auto Co. (Tex.Civ.App.) 95 S.W. 749.

Huddy's "Law of Automobiles" (2d Ed.) p. 117, § 18, declares:

"One who voluntarily accepts an invitation to ride as a guest in an automobile does not relinquish his right of protection from personal injury caused by carelessness, and it should be understood by owners of motor vehicles that they assume quite a serious responsibility when they invite others to ride with them," etc.

The generally prevailing view on this question is that, where the occupant has no control over the driver, even in a case where the relation of carrier and passenger does not exist, the doctrine of imputed negligence does not apply. Minor v. Mapes, 102 Ark. 351, 144 S.W. 219, 39 L.R.A. (N.S.) 214; 2 Ruling Case Law, p. 1202; Dale v. Dewer C.T. Co., 173 F. 787, 97 C.C.A. 511, 19 Ann.Cas. 1223; Brommer v. Penn. R. Co., 179 F. 577, 103 C.C.A. 135, 29 L.R.A. (N.S.) 924; Wachsmith v. Balt. & Ohio R. Co., 233 Pa. 465, 82 A. 755, Ann.Cas. 1913B, 679; Wilson v. Puget Sound Elec. Ry., 52 Wash. 522, 101 P. 50, 132 Am.St.Rep. 1044; Ouverson v. Grafton, 5 N.D. 293, 65 N.W. 676; Noyes v. Boscawen, 64 N.H. 364, 10 A. 690, 10 Am.St.Rep. 410; Follman v. Mankato, 35 Minn. 527, 29 N.W. 317, 59 Am.Rep. 340; P.W. & B.R.R. Co. v. Hogeland, 66 Md. 166, 7 A. 105, 59 Am.Rep. 159; Leavenworth v. Hatch, 57 Kan. 61, 45 P. 65, 57 Am.St.Rep. 309; Nesbit v. Garner, 75 Iowa, 319, 39 N.W. 516, 1 L.R.A. 152, 9 Am.St.Rep. 486; Pyle v. Clark, 79 F. 748, 25 C.C.A. 190; Union Pac. Ry. v. Lapsley, 51 F. 178, 2 C.C.A. 149, 16 L.R.A. 800.

In Louisville & Nashville Railroad Co. v. Calvert, 170 Ala. 565, 54 So. 184, the court said:

"There was no evidence tending to show that the plaintiff was controlling the driving of the horse, or was in any way responsible for its movements. The fact that she testified that her father's hearing was not perfect did not place the responsibility on her to check the
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