Williams v. Roche Undertaking Co.

Citation255 Ala. 56,49 So.2d 902
Decision Date14 December 1950
Docket Number1 Div. 409
PartiesWILLIAMS v. ROCHE UNDERTAKING CO.
CourtSupreme Court of Alabama

McCorvey, Turner, Rogers, Johnstone & Adams, of Mobile, for appellant.

Inge, Twitty, Armbrecht & Jackson, of Mobile, for appellee.

BROWN, Justice.

The plaintiff (appellee) sued the defendant (appellant) in an action on the case for negligently running his (defendant's) automobile into plaintiff's automobile-hearse at the intersection of George Drive and another drive, not stated, in Magnolia Cemetery in the City of Mobile, Alabama, while said hearse 'was moving north on said George Drive on June 17, 1947.'

The complaint contains three counts each charging negligence in general terms sufficient to authorize a recovery for simple initial negligence and subsequent negligence. Central of Georgia Ry. Co. v. Foshee, 125 Ala. 199, 27 So. 1006; Alabama Produce Co. v. Smith, 224 Ala. 688, 141 So. 674.

The defendant demurred separately to each count of said complaint on grounds, among others, that (1) the place at which the 'alleged collision occurred is not described with sufficient certainty'; (2) shows no duty which 'defendant owed the plaintiff' and (3) that 'It does not appear from the allegations of said complaint that there was any causal connection between the defendant's alleged negligent operation of an automobile and the alleged collision.'

Conceding that the first stated ground of the demurrer was well taken, Alabama Great Southern Ry. Co. v. Sheffield, 211 Ala. 250, 100 So. 125, this point was not stressed nor insisted upon in argument and we will not predicate a reversal on the overruling of the demurrer because the point was not stressed in argument and the evidence offered on the trial shows without dispute that the defendant suffered no injury from the indefinite averment. The other two grounds of demurrer are not well taken, the second for the reason that the averments of the complaint show that 'both of said roadways were open to and commonly used by the public', which shows that the plaintiff was at least a licensee and hence defendant was under duty not to negligently run his automobile against plaintiff's hearse. The third point raised by the demurrer is not well taken for the reason that each of said counts averred that 'defendant negligently ran his said automobile into plaintiff's said hearse and his said negligence proximately caused said damage to plaintiff's vehicle.' This averment shows causal connection and proximate cause of the injury. Alabama Power Co. v. Bass, 218 Ala. 586, 119 So. 625, 63 A.L.R. 1.

The circuit court overruled the plaintiff's demurrer to the defendant's plea 4, which pleaded the violation of the city ordinance as a basis for contributory negligence on plaintiff's part, and sustained the demurrer to defendant's pleas 5 and 6. For aught appearing from the averments of defendant's plea 5 the plaintiff's servant was in said cemetery in performance of his duties as a mortician using said hearse in the burial of the dead. The court, therefore, did not err in sustaining the demurrer to said plea 5. Pankey v. City of Mobile, 250 Ala. 566, 35 So.2d 497. The defendant's plea 6 is predicated on the violation of the statutory 'rule of the road' applicable to public highways. Code 1940, Tit. 36, § 1(p); Stewart v. Smith, 16 Ala.App. 461, 78 So. 724. Under the pleadings and evidence in this case, it is governed by the principles of the common law. The appellant in brief concedes that 'the evidence fully sustains the allegation as to the common use by the public' of said driveway, as alleged in the complaint.

The evidence showed without dispute that said driveway on which the plaintiff's hearse was being driven on the occasion of the alleged injury was limited to use in the daytime for vehicular driving and was closed to the public at night by means of gates at each end of the cemetery. The plaintiff (appellee in brief) states, 'and we have stated above neither roadway was open to the public as a matter of right and, therefore, neither was a public highway.'

The plaintiff's agent Mr. Newell testified that he was 23 years old and that on the 17th of June, 1947 about four o'clock in the afternoon he was driving the appellee's hearse returning from a funeral in Pinecrest Cemetery and was going through Magnolia Cemetery northerly on the George Drive and as he approached the intersection of George Street and Ann Street Road, he noticed a car on his right; that he was then about 2 car lengths from the intersection and this other automobile driven by Williams, the defendant, was around 4 car lengths away and as Newell approached the intersection Williams looked north to his right but did not look to the south. 'There was no horn or anything.' That he went on across and after he saw Mr. Williams' car was coming on out, he cut over to his right to try to get out of Mr. Williams' way; that he (Williams) hit 'my right rear fender'; that he (Newell) turned into the cemetery from Virginia Street before the accident; that it was a short turn and he had to stop to go into the gate and he put the hearse in low gear and then into second gear and then into high gear; that when he first saw the Williams' automobile he was within about 2 hearse lengths from the intersection, the hearse traveling about 20 to 25 miles per hour. That Williams drove his car into the intersection at the rate of twenty-five or thirty miles per hour; that the hearse was then practically across the intersection when Mr. Williams' car entered. Williams was then facing north and looking toward the north. That Mr. Williams never did look in his direction before the accident. That the vehicles collided on the north side of the intersection. That the front of Williams' automobile hit the rear of the hearse when it was on the north side of the intersection and the impact took place. That at the time Mr. Williams entered the intersection without sounding his horn. That the center of the front of Williams' car hit the right rear fender and rear wheel of the hearse. That the impact threw the witness out of the hearse, turned the hearse completely over and knocked it against a water hydrant on the west side of George Drive north of the intersection.

The evidence further goes to show that the hearse turned over more than once and came to rest across George Drive from 75 to 100 feet north of the intersection. The evidence shows that George Drive is 30 feet wide. Several photographs of the scene of the accident and the condition of the hearse after the collision were offered in evidence by the plaintiff. The photographs show considerable damage to the hearse. Testimony of other witnesses examined tended to corroborate the statement of Newell as to the speed of the hearse and also as to the speed of the Williams' car and one witness, a laborer working in the cemetery, testified that the hearse passed him 250 feet from the intersection.

Defendant testified that he stopped at the intersection before entering, that he looked in both directions but could not see far in the direction from which plaintiff's hearse was approaching because of bushes in his line of vision. He further testified that he eased slowly out into the intersection still in low gear and that he did not see the hearse until too late to stop. That the hearse passed his fender in front of his automobile going 50 miles per hour, struck and sheared off his fender and front end of the shell that protects the radiator. There was evidence going to show that defendant's automobile passed across the intersection and came to rest against the concrete curb at the northwest corner of the intersection.

The ordinance pleaded in the third count of the complaint and in defendant's special plea of contributory negligence 4, was in evidence. Said ordinance provides: '261.--Automobiles Authorized to Enter.--Automobiles are authorized to enter Magnolia Cemetery. This right to use said cemetery by automobiles is authorized solely and exclusively for the purpose of allowing persons so desiring to go to burial lots in said cemetery, and no automobile shall be allowed in said cemetery unless used in transporting a person or persons who desire to visit burial lots, and all such automobiles shall stop in said cemetery for a period of time not less than five minutes and discharge their passengers. Automobiles, while in said cemetery, shall not exceed in speed the rate of six miles per hour.'

The trial resulted in a jury verdict for the plaintiff assessing its damage at $2500.00 upon which, after motion for a new trial made and overruled, the judgment of the court from which this appeal is prosecuted, was rendered.

The testimony of the witness Newell if believed shows that he and Williams were both exceeding the speed limit prescribed by the ordinance and hence were violating the condition set forth in the ordinance upon which the license to use said driveway was predicated. And as to the owner of the cemetery, if privately owned, and to the public for whose benefit the ordinance was adopted, they became wrongdoers. Snedecor v. Pope, 143 Ala. 275, 39 So. 318; 38 Am. Jur., § 105, p. 767 (last par.); Susquehanna Power Co. v. Jeffress, 159 Md. 465, 150 A. 788, 71 A.L.R. 1198; Ciarmataro v. Adams, 275 Mass. 521, 176 N.E. 610, 75 A.L.R. 1175. Nevertheless, if Newell (plaintiff's agent or servant) was guilty of negligence in consequence of his violating the city ordinance, if such negligence did not proximately contribute to the collision but merely created a condition upon which defendant's negligence (if defendant was guilty of negligence), operated to proximately cause the damage to plaintiff's hearse, the plaintiff was entitled to recover under the last clear chance doctrine. Brown Hauling Co. v. Newsome, 241 Ala. 300, 2 So.2d 782.

In Southern Railway Co. v. Shelton, 136 Ala. 191, 34 So. 194, 201, the court speaking through Chief...

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    • United States
    • Alabama Court of Appeals
    • November 10, 1959
    ...from giving testimony as to the speed of the truck. The credibility of the testimony was for the jury.' See also Williams v. Roche Undertaking Co., 255 Ala. 56, 49 So.2d 902. We consider whatever deficiencies existed in the testimony of these two witnesses were matters of weight and credibi......
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