Vansandt v. Brewer

McCLELLAN, j. The review is restricted to particular errors'assigned and argued-in brief. ' , In respect of the ground of the motion for new trial questioning the sufficiency of the evidence to support the verdict, it is hardly necessary to remark that careful consideration of the whole evidence does not at all justify the conclusion that the court erred in overruling the motion on the stated ground. The plaintiff was walking abreast, with two companions, in the roadway of a public highway. There was no pavement set apart for pedestrians. A motorcycle was approaching in front of them; and the defendant’s áutomobile was overtaking them. Eor several hundred yards before reaching the men the defendant saw them and the motorcycle, and observed the movement of the motorcycle and these men. The plaintiff testified that the motorcycle had passed him and his companions about 30 feet when *133 defendant’s ear struck him. There was other evidence relating to that circumstance. The defendant testified, in effect, that, seeing the motorcycle rapidly approaching, and that his passing the motorcycle and the men would (unless he stopped) occur at a point practically opposite the men, he stopped his car; and after the motorcycle had passed he put his car in motion at a speed of about five miles an hour. There was evidence directed to showing that the speed of defendant’s ear was much greater than that he stated; but this is.matter unimportant to the questions made by the instructions reproduced in the statement ante. The undisputed evidence established the fact that there was room enough, and some two or three feet to spare,- for the defendant to have safely driven his car between plaintiff and the margin of the roadway, plaintiff being the nearer of the three men to the margin of the roadway, on the right of defendant’s course. The plaintiff denied any notice or knowledge that the defendant’s automobile was approaching from the rear; he testifying that he did not “hear very well.” There was, however, evidence otherwise that defendant seasonably sounded the horn, and also that one of plaintiff’s companions, “the next one to him, called his [plaintiff’s] attention to the automobile approaching.” If, as the jury might have concluded from the evidence, the plaintiff was advised of the approach of defendant’s automobile to his rear, it was a question for the jury to determine whether, under the circumstances, reasonable care and prudence did not require plaintiff (an adult) to take account of the approach of the automobile, and not to alter his course before observing the location and course of the automobile in the highway. An adult pedestrian, in the lawful use of a public highway, may presume, and so prudently order his conduct until otherwise advised, that an automobile will not be wantonly, willfully, or even negligently driven against him; and a driver of an automobile, in the lawful use of a public highway, may likewise assume, and so 'prudently order the course and movement of his car until otherwise advised, that an adult pedestrian, who has been .warned of the approach of his car, will not, without observing reasonable care, change his position so as to introduce danger where none existed before. According to a phase of the evidence, the plaintiff, on this occasion, suddenly stepped into the zone of danger from the car that was directed to passing him over the unoccupied space in the highway. Under the whole evidence the inquiry whether plaintiff’s injury was due to his own negligence was one to be solved by the jury. In Dozier v. Woods, 190 Ala. 279, 67 South. 283, the plaintiff was not aware of the approach of the automobile injuring her, and hence was free from the imputation of negligence with respect to her acts on that occasion. The court did not err in refusing plaintiff’s request for instruction concluding to the denial of plaintiff’s contributory negligence. In the absence of circumstances showing the contrary, an adult is generally presumed to be in possession of the normal faculties of mind and body,.including the senses of sight and hearing. Frazer v. R. R. Co., 81 Ala. 185, 196, 1 South. 85, 60 Am. Rep. 145; Tanner v. L. & N. R. Co., 60 Ala. 621; L. & N. R. R. Co. v. Cooper’s Adm’r, 6 Am. & Eng. R. R. Cases (Ky.) 5; Green v. Sou. Pac. Co., 122 Cal. 563, 55 Pac. 577, 579; L. & N. R. Co. v. Black, 89 Ala. 313, 8 South. 246. The fact that this rule has' been stated in cases where the injury in question was received on .a railway does not restrict it so as to preclude its properly invited application to cases where the scene of injury is .a public thoroughfare, and the adult pedestrian was injured by an automobile. There is nothing in the circumstances surrounding such injuries, so caused, as to admit the rule’s recourse in one and deny it in the other, though, of course, the different elements and measures of the respective rights and duties of the parties are important in defining and ascertaining the presence of negligence or contributory negligence. in the .particular case under investigation. Charge 7, given at defendant’s request, conformed to the.rule stated. It did not purport to-conclude upon the contested issues in the case. If it possessed the quality to mislead, because it did not confine the stated assumption to a time when defendant was not otherwise advised by the circumstances, the plaintiff should have asked an explanatory instruction to that end. Charge ' 7 was not erroneously given the jury. The evidence being undisputed that, when defendant started to pass plaintiff and his companions, there was unoccupied space in the highway, between plaintiff and its margin, through which defendant designed to pass, no error was committed in giving charge 3, at defendant’s request. If the charge, abstractly sound, was thought to be calculated, to mislead, through its omission to confine the therein stated right to pass to a time when due care on the defendant’s part would so admit, an explanatory instruction should have been requested. The charge (3) did not attempt to conclude upon the issues contested by the parties. According to the principle illustrated in Karpeles v. City Ice Co., 198 Ala. 449, 455, 457, 73 South. 642 (treating charges F, L, and P), no error resulted from the giving of charge 12 at defendant’s request. The case of Young v. Bacon (Mo. App.) 183 S. W. 1079, cited on brief for appellant, involved- *134 facts and circumstances materially different from those here presented. One discriminating factor, noted in that opinion, was the probability that a car approaching from the front of that plaintiff would likely cause him to step toward the course that defendant’s car was on, approaching from the plaintiff’s rear. In the case under 'review the motorcycle had passed this plaintiff' before defendant proceeded to pass. This charge (12) proceeded upon the theory, manifestly sound, that one is not required to anticipate either negligent or reckless conduct on the part of another, in the absence of indications to the contrary. If the charge was conceived to possess a tendency to mislead, an explanatory instruction should have been requested. It did not assume to conclude upon the issues contested by the parties. Charge 13 was an appropriate instruction upon the defendant’s theory of the cause of plaintiff’s injury. Karpeles v. City Ice Co., supra, 198 Ala. 449, 459, 460, 73 South. 642, justified this instruction under the evidence. See, also, Renfroe v. Collins, 201 Ala. 489, 78 South. 395. The charge assumed no material fact, predicating its conclusion upon hypotheses that required the jury’s findings of their truth. The charge qualified its reference to the car’s movement to “a proper x'ate of speed.” The evidence was undisputed that plaintiff was injured as a' consequence of his contact with the defendant’s car. We find no tangible suggestion in the evidence that plaintiff’s act in stepping (if so) in or towards the course of the car, approaching to pass or in passing him, was the result of his being suddenly confronted with peril, from which he sought, in the excitement thereby engendered, to escape. The doctrine indicated is generally an expression of the law of contributory negligence. The legal theory to which charge 13 is referable was the hypothetical exclusion of elements of wrong or negligence attributable to the defendant and the introduction, thi-ough plaintiff’s hypothesized act, of the sole proximate cause of his injury. No reversible error appearing, the judgment is affirmed. Affirmed. ANDERSON, O. X, and SOMERVILLE and THOMAS, JX, concur.