Ray v. Brannan

• Decision Date: 18 May 1916
• Docket Number: 1 Div. 927
• Parties: RAY v. BRANNAN.
• Court: Alabama Supreme Court

72 So. 16

196 Ala. 113

RAY v. BRANNAN.

1 Div. 927

Supreme Court of Alabama

May 18, 1916

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by Paul B. Ray against Thomas Brannan for damages for personal injuries suffered in an automobile accident. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals, under section 6, p. 449, Acts 1911. Reversed and remanded.

The complaint charges: First that the servant of defendant so negligently drove the defendant's car as to collide with plaintiff's car at the intersection of Warren and Government streets in the city of Mobile; and, second, that said collision was due to the failure of said servant to keep reasonably near the right hand curb of Government street as required by city ordinances. The general issue was interposed, and several pleas of contributory negligence setting up substantially that plaintiff negligently approached the street intersection at such a high rate of speed that after he saw, or should have seen, defendant's approaching car, he was unable to stop his own car; and in connection with the same allegation that a city ordinance further provides that police, fire departments, patrol ambulance, and United States mail vehicles shall have the right of way through any street and any procession, and that subject to the foregoing exceptions, and everything being equal, all vehicles going in an easterly and westerly direction shall have the right of way over all vehicles going in a northerly and southerly direction, and that plaintiff's car was not one of the excepted vehicles, and that plaintiff negligently attempted to cross said street intersection in his car at a speed greater than 15 miles an hour, in violation of the city ordinance forbidding such excessive speed; and that plaintiff negligently attempted to turn westward around such corner of Government and Warren streets at a speed greater than 10 miles an hour, in violation of the city ordinance prohibiting such excessive speed. The pleading and the evidence shows that Warren street runs north and south, and Government street runs east and west, and that plaintiff was driving along Warren and defendant along Government street. The evidence is in conflict as to the speed of the colliding cars, and as to their relative position with respect to the right-hand street curbing, and to each other, both before and at the time of the collision. There were tendencies of the evidence from which the jury might have found that plaintiff's car was traveling northward near the right-hand curb at 7 or 8 miles an hour, and that defendant's car was proceeding westward south of the center line of the street at a speed up to 18 miles an hour.

The chief question presented by the assignments of error is upon the following charge given to the jury at the request of defendant:

"Under the ordinances of the city of Mobile, Mr. Brannan's car had the right of way on Government street over Mr. Ray's car, and it was the duty of Mr. Ray, when approaching Government street over Warren street, to have his car under such control as to be able to avoid a collision with vehicles using Government street in an east and west direction, and if you are reasonably satisfied from the evidence that Mr. Ray did not so approach Government street, and that the accident complained of proximately resulted from his failure to do so, then your verdict should be for defendant."

Stevens, McCorvey & McLeod, of Mobile, for appellant.

Bestor & Young, of Mobile, for appellee.

SOMERVILLE J.

The written charge given to the jury at the defendant's request was, in effect, an affirmative instruction to find for the defendant. The proposition of law it declares is that, since vehicles traveling on Government street have the "right of way" at the crossing over vehicles traveling on Warren street, a vehicle on Warren street must at...