Southern Express Co. v. Roseman

• Decision Date: 03 November 1921
• Docket Number: 6 Div. 149.
• Citation: 91 So. 612,206 Ala. 681
• Parties: SOUTHERN EXPRESS CO. ET AL. v. ROSEMAN.
• Court: Alabama Supreme Court

91 So. 612

206 Ala. 681

SOUTHERN EXPRESS CO. ET AL. v. ROSEMAN.

6 Div. 149.

Supreme Court of Alabama

November 3, 1921

Rehearing Denied Nov. 24, 1921.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by Max Roseman against the Southern Express Company and another for damages for the death of his minor son. Judgment for the plaintiff, and defendants appeal. Affirmed.

Tillman Bradley & Morrow, of Birmingham, for appellants.

Harsh Harsh & Harsh, of Birmingham, for appellee.

MILLER J.

Max Roseman sues Southern Express Company and Irwin Blake for killing his minor son, Norman Roseman, who was between 12 and 13 years of age, averring that he was negligently killed in the public streets of the city of Birmingham, by running an automobile truck against him, which was operated by Irwin Blake for the Southern Express Company June 13, 1918.

There was only one count in the complaint when submitted to the jury. It charges simple negligence. There were several pleas-general issue, contributory negligence of deceased, and negligence of the father of deceased in permitting his son to play in the streets of the city where he was killed.

Norman Roseman was a school boy between 12 and 13 years of age, attending school located on the corner of Seventeenth street and Seventh avenue in Birmingham. He and several of his schoolmates were playing marbles-"dobbing"-trying to hit a marble with another marble. The evidence of plaintiff tended to show that the boys were standing in the street and shooting or throwing marbles at another marble near the curbstone which separated the street from the sidewalk; and the deceased and some other boys were in the street playing this game when injured and killed by an automobile truck of the Southern Express Company, operated by Irwin Blake, striking and running over him; this street is not paved and is rarely used by trucks and automobiles; that the boys were playing marbles in the street, could be seen for several hundred feet by Irwin Blake before reaching them; that no alarm or signal was given by the operator of the approach of the truck before striking deceased, who was playing with his side toward the coming truck, and that it was running at 15 or 20 miles an hour and its speed was not slackened before the injury.

The evidence is in conflict as to the place where the boys were playing marbles. The evidence for plaintiff shows they were in the street, and the evidence for defendant that they were on the sidewalk. The evidence for defendant tended to prove that deceased was playing on the sidewalk, a playmate threw a marble into the street just in front of the truck, deceased ran suddenly in the street in front of the truck, attempted to grab the marble, and was struck and injured. Signals of the approach of the truck were given before the injury. The driver swerved the truck in the opposite direction from the deceased, applied the brakes, and stopped the truck as soon as practical and possible; the speed being at the time from 6 to 8 miles an hour.

The evidence tended to show deceased was "an average boy, 12 1/2 years old, just finished his sixth grade," was one or two grades above boys of his age at school, and lived on a street where street cars and automobiles were constantly run.

There are fifteen assignments of error. Nine of them are argued by the appellant. We will consider only these nine and presume the others are waived. Republic I. & S. Co. v. Quinton, 194 Ala. 126, 69 So. 604.

This written charge requested by the defendant was refused by the court:

"The court charges the jury that if you believe from the evidence in this case that the plaintiff's minor son ran or jumped from a place of safety in front of the automobile truck so suddenly and so immediately in front of the truck that the driver could not, by the exercise of all the means at hand, avoid striking and killing him, it is your duty to return a verdict in favor of the defendants."

It fails to state if defendants were otherwise free from negligence. The defendants by this charge attempt to acquit themselves of alleged primary negligence by improperly declaring, as a matter of law, deceased was guilty of contributory negligence; and then to free themselves from subsequent negligence by singling out and bringing into special prominence the testimony of witnesses for defendants. This the law does not permit, and its refusal was not error.

Did the conduct, hypothesized in this charge of the boy, constitute contributory negligence? If yea, and as a proximate consequence thereof he was injured, then the defendant could not be guilty of subsequent negligence, if thereafter, when peril is discovered by them, the application of all means at hand to prevent the injury were used, and the "peril and catastrophe" being so close together in point of time that the injury could not be avoided after the discovery of the peril. Frazer, Adm'r, v. S. & N. Ala. R. Co., 81 Ala. 185, 1 South 85, 60 Am. Rep. 145. The undisputed evidence shows the boy's age between 12 and 13 when killed. This charge fails to state if the jury are reasonably satisfied the boy was injured as a proximate consequence of his acts and if they, the jury, are reasonably satisfied from the evidence that he appreciated the danger and consequences of his acts with as much discretion, intelligence, and sensitiveness as an ordinary child possesses when 14 years of age.

A child over 7 and under 14 years of age cannot be declared guilty of contributory negligence by the court as a matter of law unless the undisputed evidence discloses facts showing contributory negligence, and showing undisputedly that the child is over 7 and under 14 years of age, and appreciates the danger and natural consequences of his acts, constituting such negligence, with as much discretion, intelligence, and sensitiveness as an ordinary child possesses when 14 years of age; and as a proximate consequence he was injured as declared in this charge. Indian Refining Co. v. Marcrum, 205 Ala. 500, 88 So. 445; Cedar Creek Store Co. v. Stedham, 187 Ala. 622, 65 South 984; B'ham. & A. R. Co. v. Mattison, 166 Ala. 602, 52 So. 49. These principles of law were ignored in this charge.

These two written charges were asked separately by the defendant, and refused separately by the court:

"The court charges the jury that it was the duty of plaintiff's son to listen for approaching automobiles on Seventh avenue."

"The court charges the jury that it was the duty of plaintiff's minor son to keep a lookout for approaching automobiles along Seventh avenue."

The deceased at his age, under the other conflicting testimony, cannot be declared guilty of contributory negligence as a matter of law, by not looking or listening for approaching automobiles. There is testimony that Seventh avenue, where the injury occurred, is not paved, is bad, and seldom used by automobiles. One witness testified:

"I know where the school was. I doubt very much if an automobile passes there once a month; I have been living there for 18 years and have hardly ever seen one pass. This is because the streets on Seventeenth street and Sixteenth are paved. On Seventh avenue, between that and Sixteenth, is not paved. It is a bad street. Automobiles go on Sixth avenue and Eight avenue. They are both paved and Sixteenth and Seventeenth streets are paved. Unless a man had business with some one on that block, he would not ride between Sixteenth and Seventeenth street on Seventh avenue. It is a bad street."

It was the duty of the defendants to drive in such a reasonable way the truck that it would not injure the deceased; and whether or not it was the duty of deceased, at his age, playing on the sidewalk or street, to look and listen for a car, and failure to do so was negligence at all, is a question of fact to be answered by the jury, and not a question of law to be answered by the court under the peculiar, particular, and conflicting testimony of this case. Hence these charges were properly refused. Dozier v. Woods, 190 Ala. 279, 67 So. 283; Adler v. Martin, 179 Ala. 97, 59 So. 597; Barbour v. Shebor, 177 Ala. 304, 58 So. 276. The principles of law involved in these two charges are fully covered by these two written charges asked by defendants, and given by the court:

"The court charges the jury that if you believe from the evidence in this case that at the time complained of automobiles frequently passed and repassed along Seventh avenue, between Sixteenth and Seventeenth streets, and that plaintiff's son Norman Roseman knew that fact, and if you further believe from the evidence that said Norman Roseman had sufficient age, judgment, and discretion to appreciate the danger of playing in said Seventh avenue without keeping a lookout for approaching automobiles, and that he did realize and appreciate the danger of playing in said avenue without keeping a lookout, it was his duty to keep a lookout for approaching automobiles, and a failure on his part so to do, if you believe from the evidence that there was such failure, would constitute negligence on his part."

"The court charges the jury that if you believe from the evidence that the plaintiff's son was of sufficient age, judgment, and discretion to appreciate the danger of being struck by automobiles, and that he did appreciate the danger of remaining in a street along which automobiles were accustomed to run, if you believe from the evidence that automobiles were accustomed to run along said Seventh avenue, it was his duty to keep a lookout for approaching automobiles."

The defendants excepted to the following part of the oral charge of the court to the jury:

"What would be, in other words, due care to an adult, would not necessarily be due care to an

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