Whatley v. Nesbitt

GARDNER, J. (after stating the facts as above). [1] By the ruling of the court pleas of contributory negligence were eliminated, and the cause really presented only an issue of fact as to whether or not Mrs. Nesbitt, who was operating her own car at the time of the collision, was guilty of negligence which proximately contributed thereto. However, the evidence was in dispute, and if that offered by the defendant is to be accepted no actionable negligence was shown. The trial judge not only had the witnesses before him, but also made a personal inspection of the scene of the accident. We will enter into no discussion of the evidence, but content ourselves with a statement of the conclusion that under these circumstances his judgment upon the issues of fact will not be here disturbed. Few other questions are presented. One of the witnesses for the plaintiff, who saw the accident and noticed the two cars previous to the collision, was asked whether or not, in his opinion, the defendant was coming as fast or faster than the plaintiff, to which objection was sustained. It is insisted this was reversible error, citing K. C., M. & B. R. R. Co. v. Crocker, 95 Ala. 412, 11 South. 262. The witness testified that defendant’s car was being run at a rate of from 20 to 25 miles an hour; and, immediately following the ruling upon this question of evidence, the witness stated he was not positive as to the speed of plaintiff’s car, but according to his judgment it was also running 20 or 25 miles an hour. It is therefore too clear for discussion that plaintiff can take nothing of advantage from this ruling of the court, and that no reversible error was committed. [3] The defendant in testifying gave some reasons or motives for certain conduct, stating what she thought would have occurred, which statement the plaintiff moved to exclude. The record does not show any specific ruling upon this motion, but, at any rate, just following this motion, it appears that defendant’s counsel stated the statement would be withdrawn. This assignment of error is therefore without merit. [4] Only one other question of evidence requires consideration. Plaintiff offered proof tending to show there was a custom of long standing in Birmingham, giving cars which traveled the main thoroughfares, like Highland avenue, the right of way over cars coming into these avenues from side streets, and objection thereto was sustained. This evidence was not offered as to this particular intersection, and no statute or ordinance to such effect was introduced. Upon the question of proof of this custom counsel rely upon the recent case of Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 South. 642. That case is authority merely to th^ effect that on an issue of negligence a known custom may in a proper case be proved as bearing thereon, and was considered in the light of an interpretation of the ordinance there under consideration. Here, however, something more was offered to be shown, to the effect that traffic on the main street has a right of way over traffic on the side street, and in effect to establish a rule or law of the road. It is held in many of the jurisdictions that the vehicle first at the intersection or crossing, without negligence, has the right of way across, but, such a right of way is not an absolute' one, exercisable arbitrarily, or without regard to other conditions present or the rights or safety of others, but is to be exercised with due regard to the rights of others, to' the character of traffic, and other conditions. The identical question here argu ed was treated very recently by the Minnesota court in the case of Carson v. Turrish, 140 Minn. 445, 168 N. W. 349, L. R. A. 1918F, 154, where many authorities are cited. See, also, Huddy on Automobiles (5th Ed.) §§ 260, 262, 391; Ray v. Brannan, 196 Ala. 113, 72 South. 16; White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 South. 479. However, we do not find that the question is necessarily to be determined in the instant case, for, had the proof been admitted, we are unable to see that it could have affected in any manner the result reached. While the proof shows without dispute that the defendant was the first to reach the intersection, yet the corner of Ash street and Highland avenue,- on the West side, from which direction plaintiff’s car was approaching, was obstructed, and, regardless of the question of right *336 of way, had the defendant approached Highland avenue at this “blind corner” at a rapid rate of speed, as contended by plaintiff, this would have been negligence which, if the proximate cause of the injury, would have rendered defendant liable regardless of the question of right of way. On the other hand, if she approached the intersection at a slow rate of speed, giving due warning and exercising all precautions, as was contended by defendant, then she would not have been guilty of any negligence. So it clearly appears that the evidence, had it been introduced, would have added nothing to the case, and in no event would reversible error have been committed. [5] Appellant’s counsel seems to lay much stress upon the fact that defendant’s car could have been stopped in a short distance, and concludes that it was her duty to stop the car immediately upon discovering plaintiff’s approaching car, and in not doing so was negligent. There was proof, however, tending to show that a reasonably prudent person would have been impressed (considering the nearness of jjlaintiff’s car in connection with the rate of speed) that to stop would have meant certain destruction of both, cars and imminent danger to the occupant of each. The defendant pursued the course of continuing forward, but turned to the right, doubtless with the view of permitting plaintiff’s car to pass in the rear, but instead the car was steered to the left in the same direction in which defendant’s car was moving. All the proof presented questions of fact as to whether or not the defendant was guilty of negligent conduct, and upon careful consideration of the record we are unwilling to disturb the ruling of the court upon these questions of fact. Finding no reversible error, the judgment will be affirmed. ¡Affirmed. ANDERSON, .0. 3., and SAYRE and BROWN, JJ., concur. Footnotes [1] (ifejFor other cases see same topic and KEY-NTJMBBR in all Key-Numhered Digests and Indexes