White Swan Laundry Co. v. Wehrhan

CourtSupreme Court of Alabama
Citation202 Ala. 87,79 So. 479
Docket Number6 Div. 753
PartiesWHITE SWAN LAUNDRY CO. v. WEHRHAN.
Decision Date16 May 1918

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.

THOMAS J.

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):

"There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms 'ordinary care,' 'reasonable prudence,' and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court." 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 determining whether or not a plaintiff is guilty of contributory negligence, the conduct of children should not be judged by the same rules which govern that of adults, and, while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under like circumstances. It is a matter of common knowledge that, especially in cities of any considerable size, children use the streets as a playground, not confining themselves to the sidewalk, but occupying or at unexpected moments running upon or across the part of the thoroughfare used by vehicles. The same degree of intelligence and care to anticipate danger is not exacted from them as from adults. Children of immature age are not regarded as possessing the same mental capacity to understand and realize the dangers incident to the use of the public thoroughfares as are those whose minds the law regards as having matured. Of such use of the streets by children, motorists and users of other vehicles must be assumed to have knowledge, and where their presence can be observed a degree of care commensurate with the ordinary care emergencies presented in these instances must be exercised. The rate of speed is not necessarily determinative of the question. What would be reasonable care in one street would not be in another; even a much less rate might be deemed negligence on the part of the one operating the car."

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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