Stewart v. Smith, 8 Div. 470

• Court: Alabama Court of Appeals
• Writing for the Court: BRICKEN, J.
• Citation: 16 Ala.App. 461,78 So. 724
• Parties: STEWART v. SMITH.
• Docket Number: 8 Div. 470
• Decision Date: 15 January 1918

78 So. 724

16 Ala.App. 461

STEWART
v.
SMITH.

8 Div. 470

Court of Appeals of Alabama

January 15, 1918

On Rehearing, May 7, 1918

On Rehearing.

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge.

Action by John R. Smith against Wiley Stewart for damages for personal injury. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Osceola Kyle, of Decatur, for appellant.

Callahan & Harris and Wert & Lynne, all of Decatur, for appellee.

BRICKEN, J.

This is an action by Smith (appellee) against Stewart (appellant) for injuries alleged to have been sustained and proximately caused by Stewart's alleged negligence in the operation of an automobile.

The plaintiff's version of the case is that he was driving a mule hitched to a buggy, about 8 or 9 o'clock at night, going in a northerly direction on the right-hand side of the road; that he heard an automobile blow, and when he got nearly to it his mule got scared and turned suddenly to the right, and the plaintiff was thrown out of his buggy and injured; he would not say positively that the automobile struck the buggy. The plaintiff testified that he was awake at the time, and was not drunk.

The defendant's contention is that plaintiff was drunk on this occasion, and that the defendant was driving his automobile along the road going in an opposite direction to that in which the plaintiff was traveling, at a rate of speed of about 5 miles an hour; no lights were burning on the automobile, but the defendant observed plaintiff about 75 yards away, sounded his horn, and guided [78 So. 725] [16 Ala.App. 462] his machine from the center of the road over to the right-hand side in the direction in which he was going, and continued to advance towards plaintiff at the same speed, and when defendant and plaintiff were about opposite each other, the plaintiff's mule slowly "angled off" towards plaintiff's right-hand side of the road, which caused the right fore wheel of his buggy to mount a small embankment about 10 inches high, and that this elevated the front of the buggy on the right-hand side; that plaintiff was at that time sitting on the extreme left-hand side of the buggy, in a drunken condition, which caused him to fall out of the buggy, as it was in the act of mounting said embankment. Defendant's evidence further tended to show that the mule hitched to plaintiff's buggy did not manifest any signs of fright until the plaintiff fell out on the ground on the left-hand side of the buggy, when the mule suddenly turned to the right, trotted off a short distance, and stopped of its own accord. The accident happened on or about the 26th day of November, 1914. The plaintiff had been to Cullman and was on his way home. A policeman of the city of Cullman, who had known plaintiff for 15 or 20 years, testified that he was drunk on that day, and the two attending physicians who attended him that night gave as their opinion that he was under the influence of liquor immediately after the accident; a justice of the peace gave evidence tending to show that the plaintiff was drunk when he passed the justice's home a short time before the accident. Like evidence was given by several other witnesses who reside on the road plaintiff passed along, also by a number of people who were guests in defendant's automobile at the time of the accident; a quart bottle about two-thirds full of whisky was found on plaintiff's person immediately after the accident.

On motion of the plaintiff, special pleas 2, 3, and 4 interposed by the defendant were stricken.

While we do not approve of the practice of testing the sufficiency of a plea by a motion to strike, it is unnecessary for us to decide whether such action constituted a reversible error in this case, for the reason that the defendant was permitted to have full benefit of the defenses outlined in said pleas, under the issues as submitted by the court.

The Motor Vehicle Law (Acts 1911, p. 634, § 18) requires that at least two lighted lamps must be on the front of every motor vehicle operated upon the public highways in this state during the period of from one-half hour after sundown to one-half hour before sunrise. A violation of this provision of the law by the operator of a motor vehicle is negligence; and if that negligence proximately caused the injury of which the plaintiff complains, he was entitled to recover, unless he was guilty of negligence which proximately contributed to his own injury.

The trial court was requested by the defendant to instruct the jury, in substance, that if plaintiff was drunk on the occasion of the accident, he was guilty of negligence, and if that negligence proximately contributed to his injury, he was not entitled to recover. The question is thus presented to the court, for the first time, so far as we are advised, whether or not it is negligence as a matter of law for a man to get drunk and attempt to drive a vehicle drawn by a mule along a public highway between 8 and 9 o'clock at night.

It is certainly the public policy of this state to discourage the use and consumption of prohibited liquors and...