Wayland Distributing Co. v. Gay

• Decision Date: 09 September 1971
• Docket Number: 6 Div. 820
• Citation: 252 So.2d 414,287 Ala. 446
• Parties: WAYLAND DISTRIBUTING COMPANY et al. v. Dorothy M. GAY, Executrix of the Estate of John F. Gay, Jr., Deceased.
• Court: Alabama Supreme Court

Page 414

252 So.2d 414

287 Ala. 446

WAYLAND DISTRIBUTING COMPANY et al. v. Dorothy M. GAY, Executrix of the Estate of John F. Gay, Jr., Deceased.

6 Div. 820.

Supreme Court of Alabama.

Sept. 9, 1971.

Huie, Fernambucq & Stewart, Birmingham, for appellant Wayland distributing co.

Cabaniss, Johnston, Gardner & Clark and N. Lee Cooper, Birmingham, for appellants Birmingham Belt R. Co. and St. Louis-San Francisco R. Co.

Callaway & Vance, Birmingham, for appellee.

McCALL, Justice.

This action was brought under Tit. 7, § 123, Code of Alabama, 1940, by Dorothy M. Gay, as executrix of the will of John F. Gay, Jr., deceased, her husband, to recover damages for his alleged wrongful death.

In substance the plaintiff's case is that the defendant, Wayland Distributing Company, a corporation, (Wayland), negligently ran a tractor-trailer rig into an automobile the deceased was driving in a public street intersection in the City of Birmingham, that the defendants, Birmingham Belt Railway Co. and St. Louis-San Francisco Railway Co. (Frisco) negligently parked or left standing a railroad car in violation of a city ordinance, so as to create a condition of danger to vehicles approaching and crossing the street intersection, by obstructing the deceased's view of approaching traffic, and that the concurring negligence of all of the defendants proximately caused her husband's death. The defendants pleaded in short by consent the general issue with leave to introduce in evidence any matter of defense which would be admissible in evidence if well pleaded. The jury returned a verdict for the plaintiff against all defendants and judgment was entered accordingly. The defendants' motions for a new trial were overruled and they now appeal to this court.

The appellants contend that they were not negligent, and further that Gay was guilty of contributory negligence as a matter of law, which bars the plaintiff's recovering against them and entitled the defendants to the affirmative charge. They insist that, notwithstanding Gay, who was driving southwardly on 29th Street, may have stopped at the stop sign, facing him, before entering that street's intersection with Fifth Avenue South, (1) Gay did not drive his automobile with reasonable care after entering the intersection by stopping it before crossing each of the two sets of embedded railroad tracks, running longitudinally east and west on each side of the center line of Fifth Avenue South across the intersection with 29th Street, which runs north and south, and, (2) as he emerged and drove his automobile from an obscured position behind the east end of a railroad car, left standing by the defendant railroads, Gay failed to keep a proper lookout and yield the right of way to the defendant Wayland, but negligently proceeded into the path of the truck which then was approaching in dangerous proximity to Gay's right from the west on Fifth Avenue.

Gay was not negligent as a matter of law simply because he may have crossed the railroad tracks in Fifth Avenue South without first stopping and looking, in the manner in which the law is applied to railroads.

The stop, look and listen law applies for the benefit of a particular class, namely, railroads. Those, not within that class, are not entitled to assert that law as a defense, though those using the public streets, must always exercise such reasonable care for their own safety and for the safety of others as the attending circumstances require. Corona Coal & Iron Co. v. White, 158 Ala. 627, 630, 48 So. 362; Barbour v. Shebor, 177 Ala. 304, 58 So. 276; Adler v. Martin, 179 Ala. 97, 115, 59 So. 597; Ivy v. Marx, 205 Ala. 60, 62, 87 So. 813; Tillery v. Walker, 216 Ala. 676, 114 So. 137.

Therefore the stop, look and listen law is no defense in this case.

We calculate from the plat or diagram introduced in evidence that Fifth Avenue South, at its intersection with 29th Street, is 57 3 wide with two sets of embedded railroad tracks running longitudinally, therein, each having a 5 gauge, with the external edge of each outside rail of the sets of tracks, being equidistant, 9 7 , from the center of Fifth Avenue South. The north lane for westward vehicular travel is 19 1 wide between the north curb and the north rail, and the south lane for eastward vehicular travel is 19 from the south curb to the south rail.

If Gay stopped at the entrance to Fifth Avenue South, the 'through highway,' and yielded the right of way to other vehicles which had entered the intersection from the through highway, or which were approaching so closely on the through highway as to constitute an immediate hazard--though he still was at all times enjoined to exercise due care not to injure others or himself--he owed no further statutory duty to stop his automobile in the intersection to allow other vehicles approaching thereto to pass by. The statute, Tit. 36, § 19(c), Code of Alabama, 1940, as amended, provides:

'(c) * * * but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right of way to the vehicle so proceeding into or across the through highway.'

There is nothing in Tit. 36, § 19(c), supra or in § 34--137 General Code of City of Birmingham, 1964, which required Gay to stop his automobile a second time, after once having yielded the right of way as required thereby; and, if Wayland was not approaching so closely to the intersection as to constitute an immediate hazard, when Gay proceeded into the through highway, Gay would be favored with the right of way after entering the intersection.

Who had the right of way at this intersection when Gay entered it, depends on resolving the facts from the conflicting testimony of the witnesses as to the rate of speeds at which the two vehicles were traveling immediately before the collision, the distance of each vehicle from the place of collision when Gay entered the intersection, the time required for each vehicle to traverse its distance from the place of collision, as well as variables such as whether or not the speed of each vehicle was constant. According to the witnesses, Gay, after remaining stopped, then drove slowly in the intersection from two to three, or three to four miles per hour. Wayland's driver stated the speed was from ten to fifteen miles per hour. He estimated his own speed at close to thirty miles per hour, while another witness estimated it at from thirty-five to forty miles per hour. Regardless of these different estimates of speed, both vehicles were moving 1.46 feet per second, multiplied by their actual rates of speed. ¹ It is not our province to decide the rate of speed of each of the vehicles, but we are obligated to apply the rule that when it is claimed that one party is entitled to the affirmative charge, we must view the evidence in its most favorable tendencies toward the other party. Martin v. Anniston Foundry Co., 259 Ala. 633, 68 So.2d 323; Southern Ry. Co. v. Sanford, 262 Ala. 5, 76 So.2d 164; Mobile City Lines, Inc. v. Hardy, 264 Ala. 247, 86 So.2d 393. If Gay was driving at the estimate of his slowest speed of two miles per hour, and Wayland was driving at the estimate of his fastest speed of forty miles per hour, then Gay would have taken about fourteen seconds to drive the distance of forty-one feet and one inch to the point of collision from the north line of the intersection, while at fourteen seconds before the collision, Wayland's truck, going at a speed of forty miles per hour and moving 58.40 feet per second, would have been about 800 feet to the west of the point of collision when Gay entered the north line of the intersection.

It results from this consideration, whether a likely finding or not, but nonetheless one that the jury could have entertained under the evidence, that the question of who had the right of way under the statute, Tit. 36, § 19(c), at this intersection, when Gay entered it, was one for the jury. The question was one of fact and Gay was not guilty of negligence as a matter of law for failing to yield the right of way.

In Blashfield Automobile Law and Practice, Vol. 3, Chapter 114.81, we find the following statement:

'Where questions concerning the right of way are involved in a suit relating to an intersectional accident, the question of contributory negligence is usually one for the jury, particularly where reasonable men might fairly arrive at different conclusions. Generally, it is a question for the jury whether plaintiff was required to yield the right of way or was contributorily negligent because he failed to yield the right of way, whether an automobile some distance away was 'approaching' so as to require plaintiff to yield the right of way, * * *'

The appellants contend that Gay was guilty of contributory negligence as a matter of law in failing to keep a proper lookout and that the evidence shows that when he looked in the direction of the oncoming truck, he made no effort to stop. Gay, being in a public highway, was not, of course, a trespasser in crossing the intersection, Cooper v. Agee, 222 Ala. 334, 132 So. 173; Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 689, 691, 91 So. 779; Ivy v. Marx, 205 Ala. 60, 62, 87 So. 813, 14 A.L.R. 1173, nor must he, at his peril, have avoided the collision with a vehicle on Fifth Avenue South, Ray v. Brannan, 196 Ala. 113, 72 So. 16. Whether or not his operation of the automobile, in the manner in which he was driving it, constituted negligence, that proximately contributed to his death, was properly a matter for the jury to decide.

In Barbour v. Shebor, 177 Ala. 304, 311, 58 So. 276, 278, the court said:

"* * * Each party, in order to avoid accident, is bound to exercise ordinary care and such reasonable prudence and precaution as the attending circumstances may require.' * * *'

It is the rule that the driver of an automobile must keep a lookout for those who are using the highway. Ivy v....