White Swan Laundry Co. v. Wehrhan
Decision Date | 16 May 1918 |
Docket Number | 6 Div. 753 |
Citation | 202 Ala. 87,79 So. 479 |
Parties | WHITE SWAN LAUNDRY CO. v. WEHRHAN. |
Court | Alabama Supreme Court |
Rehearing Denied June 20, 1918
Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.
Suit by Ena Wehrhan against the White Swan Laundry Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals of Alabama under section 6, Act April 18 1911 (Laws 1911, p. 449). Affirmed.
Percy Benners & Burr and D.K. McKamy, all of Birmingham, for appellant.
W.J Whitaker and Frank Dominick, both of Birmingham, for appellee.
This suit was for personal injuries to a child 11 years of age, caused by collision with defendant's motor truck while plaintiff was crossing a public thoroughfare in the city of Birmingham.
By the application of old legal principles to the frequent use of public thoroughfares by motor vehicles, certain regulatory requirements are recognized as attaching and giving rise to mutual duties between travelers on such thoroughfares, the observance of which duties is important to conserve the public safety. The courts applying these rules have announced:
1. That, while public highways are open to the proper use of automobiles and other motor vehicles, the law exacts of operators of such machines therein a prudent and careful regard for the rights of others who are or may be lawfully using the public way; and the operator is liable for the consequences of negligence, in the operation of any such motor vehicle, to the injury of another traveler who is in the proper use and enjoyment of the common highway. Barbour v. Shebor, 177 Ala. 304, 58 So. 276; McCray v. Sharpe, 188 Ala. 375, 66 South 441; Reaves v. Maybank, 193 Ala. 614, 69 So. 137; B.R.L. & P. Co. v. Smyer, 181 Ala. 121, 61 So. 354, 47 L.R.A. (N.S.) 597, Ann.Cas.1915C, 863; Christy v. Elliott, 216 Ill. 31, 74 N.E. 1034, 1 L.R.A. (N.S.) 215, 108 Am.St.Rep. 196, 3 Ann.Cas. 487; 28 Cyc. pp. 25, 26; 2 R.C.L., "Automobiles," p. 1182 et seq.; Huddy on Automobiles, §§ 45, 46.
2. That degree of care to be observed by such operators, with respect to the rights of others lawfully using a public way, is the care a reasonably prudent man would exercise and observe, under like circumstances. That is, the operators of such vehicles, as well as pedestrians on the highway, must recognize the rights of others, and take reasonable care and precaution to avoid inflicting wrong and injury. Barbour v. Shebor, supra; McCray v. Sharpe, supra; Reaves v. Maybank, supra; A.C.G. & A. Ry. Co. v. Lumpkin, 195 Ala. 290, 70 So. 162; B.R.L. & P. Co. v. Williams, 158 Ala. 381, 48 So. 93; Cecchi v. Lindsay, 1 Boyce (24 Del.) 185, 75 A. 376; 28 Cyc. 27, 28; 2 R.C.L. p. 1182 et seq.; Berry Law of Automobiles, § 124, p. 113; Id., § 171, p. 166; Huddy on Automobiles, §§ 46, 47.
3. What is the exercise of reasonable care by an operator of a motor vehicle on public highways depends upon the circumstances of the particular case, as bearing upon the conduct and the affairs of men; for what may be deemed reasonable and prudent in one case may, under different circumstances and surroundings, be gross negligence. Brown & Flowers v. Central of Georgia Ry. Co., 197 Ala. 71, 72 So. 366; McCray v. Sharpe, supra; Perkins v. Galloway, 194 Ala. 265, 69 So. 875, L.R.A.1916E, 1190; Reaves v. Maybank, supra; Hood & Wheeler Fur. Co. v. Royal, 76 So. 965; Grand Trunk Railway Co. v. Ives, 144 U.S. 408, 417, 12 Sup.Ct. 679, 36 L.Ed. 485.
4. The terms "ordinary care" and "reasonable prudence," as applied to the conduct and the affairs of men, are declared to have only a relative significance, depending upon the special circumstances and surroundings of the particular case, and to defy arbitrary definition. When a given state of facts is such that reasonable men may differ as to whether or not negligence intervened, as whether or not ordinary care and reasonable prudence characterized the actions and conduct of an actor, the determination of such question becomes a matter for the jury. Grand Trunk Ry. Co. v. Ives, supra; B. & O.R. Co. v. Griffith, 159 U.S. 603, 16 Sup.Ct. 105, 40 L.Ed. 274; Texas & Pacific Ry. Co. v. Gentry, 163 U.S. 353, 16 Sup.Ct. 1104, 41 L.Ed. 186; Warner v. Baltimore & Ohio R. Co., 168 U.S. 339, 18 Sup.Ct. 68, 42 L.Ed. 491; Penn.R. Co. v. White, 88 Pa. 327, 333; 12 Rose's Notes, U.S. Rep., 171, 176.
5. "The question of negligence is one of law for the court only when the facts are such that all reasonable men must draw the same conclusion from them." Gardner v. Mich. Cent. R.R., 150 U.S. 349, 14 Sup.Ct. 140, 37 L.Ed. 1107; Railway Co. v. Ives, supra; Railway Co. v. Cox, 145 U.S. 593, 606, 12 Sup.Ct. 905, 36 L.Ed. 829; Tex. & Pac. Ry. Co. v. Gentry, supra; Chicago, St. P., M. & O. Ry. Co. v. Nelson, 226 F. 708, 141 C.C.A. 464; Kreigh v. Westinghouse Co., 214 U.S. 249, 29 Sup.Ct. 619, 53 L.Ed. 984; Delk v. St. L. & S.F. Ry. Co., 220 U.S. 580, 31 Sup.Ct. 617, 55 L.Ed. 590; Railroad Co. v. Miller, 25 Mich. 274; Emens v. Lehigh Valley Co. (D.C.) 223 F. 810.
Mr. Justice Lamar's observations touching "reasonable prudence" have been often approved by other jurisdictions, state and federal; and were quoted approvingly by this court, as follows, in the case of Reaves v. Maybank, supra (193 Ala. 618, 619, 69 So. 137, 138):
Railroad Co. v. Pollard, 22 Wall. 341, 22 L.Ed. 877; Delaware, etc., Railroad v. Converse, 139 U.S. 469, 11 Sup.Ct. 569, 35 L.Ed. 213; Thompson v. Flint, etc., Railway, 57 Mich. 300, 23 N.W. 820; Lake Shore, etc., Railway v. Miller, 25 Mich. 274; Grand Trunk Ry. Co. v. Ives, supra, 144 U.S. 417, 12 Sup.Ct. 679, 36 L.Ed. 485.
In Huddy on Automobiles (1916, 4th Ed.) p. 144 et seq., there is this discussion of the presence of children in the street:
In this connection, see Ratcliffe v. Speith, 95 Kan. 823, 149 P. 740; Savoy v. McLeod, 111 Me. 234, 88 A. 721, 48 L.R.A. (N.S.) 971; Haake v. Davis, 166 Mo.App. 249, 148 S.W. 450; Deputy v. Kimmell, 73 W.Va. 595, 80 S.E. 919, 1 L.R.A. (N.S.) 989, Ann.Cas.1916E, 656.
Mr. Huddy cites Reaves v. Maybank, supra. as authority for the statement that, in an action to recover damages for an injury to or the death of a child, the questions of negligence and contributory negligence are for the jury. The justice said:
"In view of the circumstances known to the driver, Smith, and to the defendant, it was for the jury to decide whether the degree of care we have before defined was observed by those in charge of the car at a time when the conditions out of which danger to the child soon but later arose, whether the speed of the car was, under the circumstances, within the degree of care due from the operator or from the defendant to the child, whether the car's course in the road was charted as the requisite degree of care exacted, whether it was driven, with rapidity, so near to the child on the left side of the road, when it might have been, with safety, directed further away in the highway, as to infract the dictates of ordinary...
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