Schrimsher v. Carroll

• Decision Date: 09 June 1932
• Docket Number: 8 Div. 435.
• Citation: 142 So. 547,225 Ala. 188
• Parties: SCHRIMSHER v. CARROLL.
• Court: Alabama Supreme Court

142 So. 547

225 Ala. 188

SCHRIMSHER v. CARROLL.

8 Div. 435.

Supreme Court of Alabama

June 9, 1932

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Action for damages by J. D. Carroll against N. A. Schrimsher. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals.

Affirmed.

Brickell & Johnston, of Huntsville, for appellant.

Griffin & Ford, of Huntsville, for appellee.

KNIGHT J.

The plaintiff brought this suit against the defendant, appellant here, to recover damages for personal injuries, and injury to his automobile, as the result of a collision between the automobiles of appellant and appellee, which collision, the plaintiff insisted, was the proximate result of negligence on the part of defendant's servant in the operation of his car at the intersection of north Church street and Oakwood road, in Madison county, Ala., on or about July 10, 1931.

The plaintiff's automobile was being driven at the time by his young son, then under sixteen years of age. The plaintiff and his wife were riding on the rear seat of the car, while his daughter and son were on the front seat, the son at the steering wheel. The plaintiff's automobile was proceeding along Oakwood road, traveling westward, while defendant's automobile was proceeding northward along north Church street. North Church street, at its northern extremity intersects Oakwood road, and at that point it stops.

The defendant filed a plea of the general issue, with leave to give in evidence any matter of defense which would be good in bar, if specially pleaded, and also a plea of recoupment which last plea is numbered 2 in the record. In this second plea, the defendant sought to recover damages of the plaintiff by "reason of the negligence of the plaintiff's servant, agent or employee in charge of the automobile of plaintiff upon the occasion of the injury for which plaintiff claims damages in this, that the agent of the plaintiff so negligently operated the automobile of the plaintiff as to cause the same to run upon or against the automobile of the defendant, and as a consequence thereof defendant's automobile was damaged to the extent of one hundred dollars, for which defendant claims judgment against plaintiff." The propriety of plea 2 was not tested, in any way, and issue was joined on all pleas. In view of the joining of issue on plea 2, and of the verdict of the jury in favor of plaintiff on the issues submitted, it is not now for us to express any opinion upon the propriety or sufficiency of the plea of recoupment, and we are not called upon to express any opinion, therefore, upon the propriety or sufficiency of such a plea. That question will be determined when the necessities of the case call for such a determination.

The evidence in the case was such as to require its submission to the jury. The defendant, however, requested in writing four charges, which he insists should have been given. The first two are, in form, general affirmative instructions in his behalf. The third refused instruction is as follows: (3) "I charge you gentlemen of the jury that it was the duty of the driver of plaintiff's automobile to give warning of his approach at the intersection of Church Street and Oakwood Avenue by blowing his horn." The evidence tended to show that the two cars entered the intersection at approximately the same time; that the plaintiff's car at the time was on the right of the intersection, and the defendant's car on the left. Mrs. Carroll, wife of plaintiff, called and examined as a witness on behalf of plaintiff, testified, in part, as follows: "The Schrimsher car came out of the mouth of North Church Street. I do not know how fast they were traveling. That corner is blind. The Oakwood Road is clear there at the intersection with Church Street. You cannot see into the Oakwood Road coming into it there. There is an obstruction. It is a growth, I think: the best I remember there is a lot of bushes and honey-suckle vines and things like that, and you cannot see around what is coming into that street." And, on cross-examination, this witness testified: "At that corner, on North side, I don't think the embankment is so high. On the South side of Oakwood Road and on East side of Church Street where Church Street comes in there from the South, I think there is a pretty high embankment. I don't think it is so high. There is a fence around the corner; that is fenced up and grown up. The best that I can remember right at the corner where Church Street comes into Oakwood Road, on South side of Oakwood Road and the East side of Church Street, there is a 'tolerably' high bank there fenced up that obstructs the view. You can't see into Church Street until you get right at it."

With reference to defendant's plea 3, it may be said that there is no statutory requirement which called for the blowing of the horn by plaintiff's driver before entering the intersection. Whether or not the circumstances of the case, as disclosed by the evidence, would have suggested to an ordinarily prudent driver, similarly circumstanced, the propriety or necessity, in order to conserve life or property, to blow the horn, was a question for the jury, and not for the court. The court could not have given the requested charge under the evidence without invading the province of the jury. While the statute does not require in terms that the driver of plaintiff's car should have given a signal of his approach to the intersection by blowing the horn, yet, if it was the part of due care and caution to do so, and if a reasonably careful and prudent driver would have done so at the time and place, under the circumstances then prevailing, then it would have been the duty of the driver of plaintiff's car to have done so, and failing therein he would have been guilty of a negligent omission of duty-would have been guilty of negligence. The question was one for the jury to decide under the facts, not for the court, as assumed by the charge.

The court committed no error in refusing defendant's said requested charge 3.

Charge 4 requested by defendant was bad, in that it omitted all reference to causal connection between failure to blow the horn and the injury complained of. It omits the postulate, if the jury should be further satisfied from the evidence that the collision was proximately due to the failure on the...