Simpson v. Glenn

• Decision Date: 02 February 1956
• Docket Number: 6 Div. 885
• Citation: 264 Ala. 519,88 So.2d 326
• Parties: Mildred SIMPSON v. Carey E. GLENN, Adm'r.
• Court: Alabama Supreme Court

Page 326

88 So.2d 326

264 Ala. 519

Mildred SIMPSON v. Carey E. GLENN, Adm'r.

6 Div. 885.

Supreme Court of Alabama.

Feb. 2, 1956.

Rehearing Denied June 21, 1956.

Jackson, Rives, Pettus & Peterson, Birmingham, for appellant.

Hare, Wynn & Newell, Birmingham, for appellee.

SIMPSON, Justice.

This is an appeal from a judgment granting plaintiff's motion for a new trial in a wrongful death action in which the jury found for the defendant (appellant). The basis of the trial judge's decision as shown by the judgment was the claimed error in giving defendant's written Charge Z, to wit:

'The court charges the jury that if you are reasonably satisfied from the evidence that Mrs. Glenn was crossing 12th Street Southwest, at Princeton Alley, then in such event she was guilty of negligence as a matter of law.'

Plaintiff's intestate was run down by the automobile of the defendant while attempting to cross 12th Street at the place stated in the charge in the city of Birmingham in the nighttime. This conduct of the plaintiff's intestate was in violation of Sec. 1292(a) of the General City Code of Birmingham of 1944, which reads as follows:

'It shall be unlawful for any pedestrian to cross any street at any other place than a street intersection, and in crossing any street at the intersection thereof with another street such pedestrian shall pass over that part of the street which is included within the lines of the sidewalk projected and not diagonally.'

It thus appears that Charge Z which was given for the defendant was founded upon a violation by the plaintiff's intestate of the aforesaid traffic ordinance. After a careful study we have reached the conclusion that the charge stated a correct legal principle. The holding in the better reasoned Alabama cases is that the violation of a traffic ordinance or rule of the road constitutes negligence per se and a person proximately injured thereby may recover for such injuries against the violator of the law if suing and if the plaintiff is guilty of such conduct which proximately contributes to his injuries that constitutes a defense of contributory negligence to a simple negligence charge. Winfrey v. Witherspoon's, Inc., 260 Ala. 371, 71 So.2d 37; Triplett v. Daniel, 255 Ala. 566, 52 So.2d 184; McBride v. Baggett Transportation Co., 250 Ala. 488, 35 So.2d 101; McGough Bakeries Corporation v. Reynolds, 250 Ala. 592(6), 35 So.2d 332; Cosby v. Flowers, 249 Ala. 227, 30 So.2d 694; Clift v. Donegan, 237 Ala. 304, 186 So. 476; Greer v. Marriott, 27 Ala.App. 108, 167 So. 597, certiorari denied 232 Ala. 194, 167 So. 599; Newell Contracting Co. v. Berry, 223 Ala. 111, 134 So. 868; Smith v. Baggett, 218 Ala. 227, 118 So. 283; City Ice Delivery Co. v. Lecari, 210 Ala. 629, 98 So. 901; Reynolds v. Woodward Iron Co., 199 Ala. 231, 74 So. 360; Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471; Kansas City, M. & B. R. Co. v. Flippo, 138 Ala. 487, 35 So. 457. Many other cases of like import could be cited.

There, of course, can be no sound distinction between the rule with respect to violation of a statute and a municipal traffic ordinance. As stated in 65 C.J.S., Negligence, § 19(b), p. 420:

'In jurisdictions where violation of a statutory duty is regarded as negligence per se it is usually considered that violation of a municipal ordinance designed for the protection of the person claiming to have been injured by reason of such violation is also negligence per se, or negligence as a matter of law, on the ground that there is no good reason for having one rule with reference to statutes and a different rule with reference to ordinances which have the force of statutes within the municipality.'

Our court has not attempted to rationalize any sound distinction as indicated from the above cited cases, some of which involve the violation of a statute and others the infraction of a traffic ordinance.

The trial court in granting the motion for a new trial was influenced by Alabama By-Products Corporation v. Rutherford, 239 Ala. 413, 195 So. 210, and Salter v. Carlisle, 206 Ala. 163, 90 So. 283 (both cases involving violation of traffic ordinances). The decision of the learned judge may be said to be supported by these two cases, but in our opinion they and some others of somewhat similar import are unsound in holding that a person violating such an ordinance was not guilty of negligence as a matter of law seemingly because the ordinance was 'a mere traffic regulation.' The two last cited cases are predicated upon the erroneous conclusion that Ivy v. Marx, 205 Ala. 60, 87 So. 813, 814, 14 A.L.R. 1173, was authority for the holding. A careful reading of the Marx case will disclose that the single question decided was that an ordinance punishing by fine or imprisonment a pedestrian who crosses a street diagonally at a street intersection does not relieve the driver of an automobile of his duty to keep a lookout for a pedestrian who so crosses, the holding being that a charge which sought to relieve the...