Tennessee Mill & Feed Co. v. Giles
| Decision Date | 24 January 1924 |
| Docket Number | 6 Div. 55. |
| Citation | 211 Ala. 44,99 So. 84 |
| Court | Alabama Supreme Court |
| Parties | TENNESSEE MILL & FEED CO. v. GILES. |
Rehearing Denied Feb. 14, 1924.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Action for damages for personal injuries by Lewis Alton Giles, suing by his next friend, W. C. Giles, against the Tennessee Mill & Feed Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, for appellant.
J Reese Murray and James H. Willis, both of Birmingham, for appellee.
This appeal is from a judgment rendered in favor of appellee for personal injuries sustained as a result of a collision between the bicycle ridden by him on one of the streets of the city of Birmingham and the motor truck of appellant.
Only two questions are here presented for consideration: The refusal of the affirmative charge requested by the defendant, and the denial of the defendant's motion for a new trial.
The plaintiff was a messenger boy 16 years of age, in the employ of the Postal Telegraph Company. The Postal Company's office was in the Brown-Marx building in Birmingham, on the side facing First avenue. The plaintiff mounted his wheel in front of this office and started down First avenue for the purpose of delivering a message. At this particular point, where First avenue is intersected by Twentieth street, and according to the plaintiff's testimony just before he reached Twentieth street the right front fender of the defendant's truck struck the handle bars of his bicycle and pulled him under the truck-the right wheel in the rear of the truck passing over his body. The truck was on the right side of First avenue, also going in the direction of Twentieth street, and the evidence tended to show that both the truck and the bicycle were moving at a slow rate of speed, and that plaintiff was on his wheel and between the truck and the curbstone.
It is not clear from the evidence whether the plaintiff overtook the truck or vice versa, or whether, in fact, the plaintiff moved along with the truck as it came by the Postal office. The eyewitnesses to the accident each appear to place the plaintiff alongside the front of the truck when they first saw him. The witnesses for both the plaintiff and defendant differ in their testimony as to the details, but these conflicts need no special notice. Both the truck and the bicycle were headed to cross Twentieth street. The plaintiff himself did not notice the truck, and the driver of the truck likewise insists that he did not see the plaintiff and knew nothing of his presence until after the accident. The driver, however, states that he noticed people crossing First avenue on the north side of Twentieth street-the people going across Twentieth street east and west. The plaintiff and the truck were each moving west toward the intersection of Twentieth street, and the plaintiff was on the north side of the truck. If the driver, therefore, was looking at the traffic across First avenue, on the north side of Twentieth street, and the plaintiff was riding his wheel along the side of the front wheel or front right fender of the truck, then the jury could infer that the plaintiff was within the range of vision of the driver of the truck, and in fact was seen by the driver thereof; though the latter testified to the contrary. Such is the result of the holding of this court in the cases of L. & N. R. Co. v. Calvert, 172 Ala. 597, 55 So. 812; L. & N. R. Co. v. Jenkins, 196 Ala. 136, South. Ry. Co. v. Shelton,
The evidence for the plaintiff tends to show that, as he was thus riding his wheel alongside the front of the truck, near the front wheel or the front fender, the driver of the truck made a "sharp turn to the right," thus causing the front fender of the truck to strike the handle bars of the bicycle, throwing plaintiff to the pavement and under the rear wheel of the truck, resulting in the injuries above referred to.
It is well established by our decisions that the highest degree of care is not exacted of operators of automobiles on public highways, but the driver is under the duty of exercising reasonable care to avoid inflicting injury upon others who may be lawfully using the same highway. The words, "reasonable care," "ordinary care," and "reasonable prudence," cannot be arbitrarily defined, but have a relative significance as applied to the conduct and affairs of men, for what may be deemed ordinary care in one case may under different circumstances be considered negligence. The determination of such questions is usually left to the jury.
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