Strickland v. Davis

• Decision Date: 27 March 1930
• Docket Number: 6 Div. 409.
• Citation: 221 Ala. 247,128 So. 233
• Parties: STRICKLAND v. DAVIS.
• Court: Alabama Supreme Court

128 So. 233

221 Ala. 247

STRICKLAND v. DAVIS.

6 Div. 409.

Supreme Court of Alabama

March 27, 1930

Rehearing Denied May 22, 1930.

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action by Mrs. Sydney M. Davis against J. J. Strickland. From a judgment for plaintiff, defendant appeals.

Affirmed.

The refusal of requested instructions covered by those given is not error.

The following charges were refused to defendant:

"6. The Court charges the jury that if you find from the evidence in this case that on the occasion complained of the defendant sounded his horn as he approached near to the rear of the automobile in which plaintiff was riding, and within such time and proximity to his undertaking to pass the automobile in which plaintiff was riding to permit her said car to give way and leave room for defendant to pass on her left, then I charge you that defendant was entitled to the right of way to pass, and if defendant undertook to so pass and in doing so, was in the exercise of reasonable care and prudence and under said circumstances came in contact with plaintiff's said car, and as a result thereof plaintiff's said car was deflected to her right, and defendant's car did not again touch or come in contact with her said car; and that plaintiff's said car left the road and continued in the direction of the tree, which it struck, and while on the way to said tree the driver of said car so manipulated the same so as to increase the speed thereof instead of slowing it down, and that said increase of speed was the proximate cause of the collision of said car with said tree, and plaintiff's damages and injuries, then I charge you that you must find for the defendant.

"7. The Court charges the jury that if you find from the evidence in this case that the collision of the automobile in which plaintiff was riding with the tree and her consequent injuries and damages were the proximate result of an efficient intervening cause, such as the driver of her said automobile stepping on the gas or accelerator between the time the defendant's automobile and her said automobile came in contact with each other, and the time her said car struck the tree, then I charge you that she is not entitled to recover in this case and your verdict should be for the defendant."

"17. If you find from the evidence in this case that the driver of the car in which plaintiff was riding at the time and place complained of after the collision between said car and defendant's car by his own act drove said automobile against said tree, and thereby caused plaintiff's injuries and damages, then I charge you that the plaintiff is not entitled to recover in this action and your verdict should be for the defendant."

"L. If plaintiff's injuries and damages were the sole proximate result of the act of Mr. Lynn in running his car against the defendant's car, and without fault on defendant's part then you should find for the defendant."

"31. The court charges the jury that when one automobile overtakes another on a public highway, it is the duty of the front car to so turn to the right as to permit the overtaking car to pass freely and uninterruptedly."

"33. The Court charges the jury that if they find from the evidence in this case that the road over which plaintiff and defendant were traveling on the occasion complained of was a much traveled highway, then the fact of this heavy travel of said highway may serve as notice to the driver of the car in which plaintiff was riding, and the plaintiff, that people in other cars were coming up behind and that the driver of the front car must so conduct himself as to give them a reasonable opportunity to pass.

"34. Where a highway is much used for travel, this fact alone may be sufficient to charge the driver and occupants of cars with notice that there may be vehicles in the rear, and impose upon them the obligation to manage his car, see that it is managed, so as not to endanger vehicles which may be following them.

"35. Where an automobile driver suddenly shifts his car in the line of travel and thereby creates a sudden danger to a vehicle which is following him, this may constitute negligence resulting in liability for injury to the following vehicle or its occupants and precluding any recovery for injury to himself or his vehicle."

"41. The driver of a leading automobile on a highway on signal from a following automobile of a desire to pass should turn to his right, if this is necessary to allow a clear passage so as to afford the overtaking vehicle a reasonable opportunity to pass on his left, and if such leading car does so turn to the right, then it is the duty of the driver of that car to maintain the position of that car on the right of the highway until a reasonable time has passed for the overtaking car to pass in safety and if such leading car under such circumstances suddenly turns back into the left so as to block the passage way so tendered to the overtaking car, and a collision proximately results therefrom, then the driver of the overtaking car is not responsible for such collision."

"43. The operator of an overtaken automobile who fails to allow room for passing when this is reasonable and practical is guilty of contributory negligence, and it is gross misconduct for the driver of such overtaken car to unnecessarily and intentionally crowd in toward a car which is passing him from the rear."

"J. If you find from the evidence in this case as Mr. Lynn left the County Road he became confused and as a result thereof gave his car gas and this act on his part was the sole cause of plaintiff's injuries and damages then you should find for the defendant.

"K. If you find from the evidence in this case that Lynn's car moved toward and struck defendant's car and that the injuries and damages complained of were solely caused by Lynn's said act and by nor as the proximate result of no act of defendant then you should find for the defendant."

T. A. Murphree, of Birmingham, and Huey & Welch and W. G. Stone, all of Bessemer, for appellant.

Altman & Koenig, of Birmingham, for appellee.

BOULDIN J.

The action is to recover damages for personal injuries resulting from an automobile collision.

Count A of the complaint, on which the trial was had, alleges that while plaintiff was a passenger in an automobile being driven on a public highway at a time and place specified, the defendant negligently "ran an automobile against the said automobile in which plaintiff was such passenger, and as a proximate result of said negligence" plaintiff received the injuries described.

These averments disclose the duty of care by one motorist toward another in the rightful use of a public highway. This being shown, a general averment of negligence is sufficient.

The demurrer to this count was properly overruled. Ruffin Coal & Transfer Co. v. Rich, 214 Ala. 633, 108 So. 596; Birmingham Stove & Range Co. v. Vanderford, 217 Ala. 342. 116 So. 334.

Plaintiff, Mrs. Davis, was riding in a Studebaker roadster with the owner, Sylvester Lynn, who was driving the car en route from Birmingham over the public highway known as Lock 17 Road. Defendant, Dr. J. J. Strickland, driving his own Cadillac car, overtook and undertook to pass the Lynn car some twenty miles west of Birmingham. A collision of more or less violence occurred, wherein the front portions of the two cars came into contact, the right side of defendant's car colliding with the left side of Lynn's car. Lynn's car veered to the right, left the road, and ran into a large oak tree standing some fifty feet from the center of the road. The personal injuries received by plaintiff, so far as the evidence discloses, were due to the violent impact of the car with the tree.

Thus far the evidence is without substantial conflict.

Plaintiff's version of the accident, briefly stated, is: While driving at midday along an open stretch of the highway, 20 or more feet in width of traveled surface, and while going at a speed of some 30 miles per hour, and keeping well to the right of the center of the road, suddenly and without warning so far as heard by either of the occupants of the Lynn car, defendant's car, suddenly passing on the left, struck Lynn's car about the left fore wheel, causing it to suddenly change direction and run into the tree. Lynn, as a witness, claims that he was so unbalanced and tossed about by the collision and movement of his car over rough ground, that he did not regain control of same in time to avoid striking the tree.

Defendant's version, briefly stated, is: On overtaking the Lynn car a signal was given and repeated, the Lynn car turned to the right as if recognizing the signal to pass, and while in the act of passing the Lynn car turned to the left and caused the collision. Defendant disclaims knowledge that the cars had actually come into contact until notified by his companion riding with him; claims that his car kept on its course until he brought it to a stop after such notice. Plaintiff claims defendant's car swung to the right of the road and scraped the embankment at a point beyond the collision. There is a sharp conflict as to the exact point of the collision to be further noticed.

Plaintiff over objection of defendant, was permitted to introduce evidence of declarations made by the defendant after the accident to the effect that he was "at fault" in the...