Terrill v. Walker

• Decision Date: 07 May 1912
• Citation: 5 Ala.App. 535,59 So. 775
• Parties: TERRILL v. WALKER.
• Court: Alabama Court of Appeals

59 So. 775

5 Ala.App. 535

TERRILL v. WALKER.

Court of Appeals of Alabama

May 7, 1912

On Application for Rehearing, June 19, 1912.

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by Geneva Walker against J. D. Terrill for injury from collision with her of an automobile. Judgment for plaintiff defendant appeals. Reversed and remanded.

The complaint alleges, in effect, that the plaintiff was walking along or across the Old Shell road, a public highway, and the defendant was operating an automobile on said highway, and so negligently went about its operation and control of said automobile as to cause it to run over, upon, or against plaintiff, causing her injuries, bruises, etc. The first two counts are in simple negligence, while the third is in wanton or intentional misconduct. Plea 2, before amended, was that plaintiff was guilty of contributory negligence, in that plaintiff attempted to cross the Old Shell road in front of said approaching automobile, and failed to stop, look, and listen before attempting to cross in front of said approaching automobile. As amended, the plea read that plaintiff attempted to cross the Old Shell road in front of said automobile, when she knew that by so crossing or attempting to cross Old Shell road in front of said approaching automobile she was liable to be stricken by said automobile. Plea 3 is that plaintiff was guilty of contributory negligence in attempting to cross Old Shell road in front of said automobile, when by attempting to cross, or in crossing, she was liable to be stricken by said automobile. As amended, the plea read that plaintiff was guilty of contributory negligence, in that plaintiff attempted to cross Old Shell road in front of said approaching automobile, when the said automobile was but a short distance behind her, and a reasonably prudent person situated as was the plaintiff, would have known that by crossing or attempting to cross said road in front of said approaching automobile she was liable to be stricken by said automobile. After the amendment of the complaint by the addition of the count in wantonness, pleas 2 and 3 were amended and refiled to counts 1 and 2. As amended the second time, the pleas appear as set out in the opinion. Plea 3 is last amended as follows: "Comes the defendant, and for further answer to the first and second counts of the amended complaint says that plaintiff is guilty of contributory negligence which proximately contributed to her injury, and that said contributory negligence consisted of the following to wit: Plaintiff avers that the said Old Shell road, at the time of the matters alleged in the complaint, was frequently used by automobiles and other vehicles, and that the plaintiff at said time was walking along the right side of the road on a path commonly used by pedestrians. The defendant further avers that there was a well-defined roadway in said Old Shell road which was used by automobiles and other vehicles traversing said road, which said roadway did not include the path along which the plaintiff was walking at the time. The defendant further avers that at and before the time the matters set up in the complaint the plaintiff knew that said Old Shell road was frequently traversed by automobiles and other vehicles, and that the said path along which she was walking was the portion of the road commonly used by pedestrians. The defendant further avers that, notwithstanding said facts, the plaintiff negligently left said pathway and negligently attempted to cross said Old Shell road in front of said approaching automobile, and in dangerous proximity thereto, without first endeavoring to ascertain whether any vehicle was in dangerous proximity, although she could have ascertained this by the use of ordinary diligence; and the defendant further avers that the place where the plaintiff attempted to cross said Old Shell road in front of said approaching automobile was not an intersection of the said Old Shell road with any public highway, or with any crossing used by pedestrians or vehicles."

Boyles & Kohn, of Mobile, for appellant.

Gordon & Edington, of Mobile, for appellee.

DE GRAFFENRIED, J.

1. A public highway is a road which every citizen has the right to use. "The fundamental idea of a highway is not only that it is public for free and unmolested passage thereon by all persons desiring to use it, but the use of a highway is not a privilege, but a right, limited by the rights of others, and to be exercised in a reasonable manner." Radnor Tp. v. Bell, 27 Pa. S.Ct. 1, 5; The Law of Automobiles (2d Ed.) p. 88, § 3, note 15; Berry's Automobile Law, § 114. The rights of footmen and drivers in the highway are equal, and both must exercise such care as circumstances may demand. Elliott, Roads and Streets § 834; The Law of Automobiles (2d Ed.) p. 96, § 9.

The rule requiring a person to stop, look, and listen before crossing a railroad track has no applicability to a person crossing a street or public highway. If a footman undertakes to cross a street at a point where it is frequently used by automobiles or other vehicles, he has a right, without looking and listening, to presume that the drivers of automobiles and vehicles are obeying the law of the road, and that they have so reduced or gauged their speed, and are so conducting themselves, as to meet the obligations which the circumstances demand of them at such place. Of course, if a person, in crossing a street or public highway, sees, in dangerous proximity, an approaching team, automobile, or other vehicle, and that its speed is such as to render the attempt to cross in front of it dangerous, and under such circumstances walks in front of it and thereby suffers injury, such person would be guilty of contributory negligence. Corona C. & I. Co. v. White, 158 Ala. 627, 48 So. 362, 20 L. R. A. (N. S.) 958; W. C. Barbour v. Ben Shebor, 58 So. 276. "Automobiles have no special privileges in the streets more than other vehicles. They simply travel upon the streets with the same privileges and obligations as other vehicles; and the mere fact that they can run faster than other vehicles does not give them any right to run at a dangerous rate of speed, any more than the fact that one man drives a race horse gives him a right to travel the streets at a higher rate of speed than another who drives a plug. The simple rule is that drivers on the streets and pedestrians, each recognizing the rights of the other, are required to exercise reasonable care." W. C. Barbour v. Ben Shebor, supra.

The driving of an automobile on a public highway necessarily imposes upon the person in charge of its operation the duty of exercising reasonable care to avoid inflicting wrong and injury upon others, who may lawfully be using the same highway. Overton v. Bush, 2 Ala. App. 623, 56 So. 852. The automobile is now the most dangerous vehicle in common use, and in operating it upon a public highway the operator must enlarge to a "commensurate extent the degree of vigilance and care necessary to avoid injuries which the use of his vehicle has made more imminent." Berry on Automobile Law, § 119.

In the present case the facts are that the appellee, while walking along the Old Shell road, near the city of Mobile, was run over or knocked down by appellant's automobile. The Old Shell road is a much-traveled thoroughfare, and is largely used by the drivers of automobiles and other vehicles. The appellee was walking on one side of the road, when the appellant, who was driving his own machine, came up behind her and struck her, inflicting painful injuries upon her. The testimony is in dispute as to the gravity of the injuries which were so received by the appellee. The appellee's testimony tended to show that she was struck by the automobile while she was walking along the road, and that she did not know of the approach of the automobile until after she was struck. The appellant's testimony, on the other hand, tended to show that he saw the appellee ahead of him some distance before he reached her; that he did not sound his horn or give her any notice of his approach, other than such notice as the noise of the machine might have given her; and that when he reached a point within eight or ten feet of her she ran in front of his machine, and that, although he undertook to avoid the injury, he could not then do so.

There were three counts to the complaint. The first two counts charge that the injury was due to the simple negligence, and the third that it was due to the wantonness, of the appellant.

There were several pleas to the complaint. As the appellee was under no duty to "look and listen" before attempting to cross the highway, plea 2 was manifestly subject to the demurrer which was interposed to it.

Plea 3 sets up that the appellee attempted to cross the road in front of "said approaching automobile when, by crossing or attempting to cross said Old Shell road, she was liable to be stricken by said automobile." This plea does not allege that appellee, when she attempted to cross the road, knew of the approach of the automobile, or that she was "liable" to be struck by it, and was manifestly bad.

Plea 2, as amended, sets up that the appellee attempted to cross Old Shell road in front of said approaching automobile, "when she knew that by so crossing or attempting to cross said Old Shell road in front of said approaching automobile she was liable to be stricken by said automobile." This plea does not aver that the

automobile was traveling at a high rate of speed, or that it was in close proximity to appellee when appellee attempted to...