L. Hammel Dry Goods Co. v. Hinton

THOMAS, J. Plea 2 as amended, to which demurrer was sustained, was no answer to count 3 setting up the violation of the rule of the road. And this justified the ruling of the trial court. Moreover, the plea was ambiguous in the use of the words, “collide with said automobile.” If defendant’s truck was referred t'o in the plea, as insisted in argument of the appellee, the averment is insufficient — the fact stated failed to show notice or knowledge of the plaintiff of the whereabouts of “said” defendant’s car or truck. The plea was insufficient as an answer to the other counts. One having the right of use to double driveway streets may assume that the other so using the thoroughfare will observe the law of the road at such time and place and under the circumstances presented. That is to say, proceeding as plaintiff is averred to have approached the point of collision on a paved street or hard-surfaced road, he may act upon the assumption that others crossing or approaching thereon will observe the rule of the road, and is not guilty of contributory negligence, in the first instance, in acting on that assumption; no-facts being averred to show that he was sufficiently apprised of the fact that the other would not observe the law. The-general duty of due care under the circumstances was all that was required of the plaintiff. Shafer v. Myers (Ala. Sup.) 112 So. 230; 1 Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642. That is to say, plaintiff’s conduct is to be judged under the “certain circumstances” of the time and place and the rules of the road binding on all traversing the public thoroughfare where the collision occurred. The plea sought to place upon the plaintiff a higher duty of a special lookout for cars entering Springhill avenue from the south and from Lanier avenue. The facts averred in the plea do not sufficiently show the duty on plaintiff to keep the lookout indicated for cars approaching from Lanier into Springhill avenue; it is subject to the fifth ground of demurrer. Barbour v. Shebor, 177 Ala. 304, 58 So. 276; Adler v. Martin, 179 Ala. 97, 59 So. 597; So. *129 Express Co. v. Roseman, 206 Ala. 681, 91 So. 612. Affirmative instruction was requested as to count 3, and objection made to tbe introduction in evidence of ordinance No. 4 on tbe theory or ground that tbe ordinance was unreasonable and void and in conflict with tbe general law stated in section 6266 of tbe Code of 1923, and rulings thereon are urged as error. We do not understand that tbe ordinance is in conflict with tbe general law, or that its provisions are unreasonable. Tbe rules of tbe road, so stated in tbe general law, were subject to tbe imposition of reasonable ordinances or traffic regulations by municipalities. Tbe express provisions therefor were: “At intersections of public highways, the vehicle approaching on the right of the other vehicle shall have the right of way, but this shall not prevent municipalities from adopting ordinances for the regulation of traffic within their boundaries; and vehicles travehng on trunk roads established under the laws of Alabama shall have the right of way.” See, also, sections 1347, 1348, and 1350. In Adler v. Martin, 179 Ala. 97, 117, 59 So. 597, 603, after discussing many authorities, including Barbour v. Shebor, 177 Ala. 304, 58 So. 276, it was said of tbe duty of a pedestrian crossing a street: “He must use due care to avoid collisions with them; but what is due care in this regard will depend upon the character of the street, the extent of its use by vehicles, the kind of vehicles that frequent it, and upon the locus of the attempted crossing, i. e., whether it is at a regular and general crossing, or at a point not generally so 'used, or, as in the present case, at a point where there is no occasion at all for crossing, and crossing is very infrequent. Other considerations, also, may obviously increase or diminish the hazards of inattention. Due care is relative always. ❖ ❖ * *:< * * * * “In Barbour v. Shebor, supra, where plaintiff was injured by an automobile while crossing the street, it was held by a divided court that a plea setting up as a defense that plaintiff ‘negligently attempted to cross said street without looking for said automobile, which was then and there approaching in rapid motion on said street, and was struck by said automobile and injured, although he knew that automobiles were likely to pass on said street at any moment,’ was insufficient on demurrer. It will suffice for present purposes to say that a pedestrian’s failure to look for any particular automobile cannot be characterized as negligent, unless he knew it was approaching in such proximity as might render his inattention a menace to his safety. And so ‘negligently attempting to cross the street,’ without looking generally for a particular car, is not the equivalent of a negligent failure to look up or down the street in the direction from which the car might be approaching.” The last observation illustrates tbe defect of said plea and justifies tbe sustaining of demurrer thereto. There was no error in refusing tbe charge made tbe subject of tbe sixth assignment of error. It was abstract and misleading under tbe evidence, the highway was a double highway. Tbe law required driving to tbe right of tbe center of tbe street. Tbe evidence and map show that defendant’s driver crossed diagonally across to the left of the center of the crossing; that, under tbe stress of tbe moment, defendant’s driver “cut tbe comer” at tbe crossing in bis effort to proceed to Crichton. And tbe charge was therefore confusing. This act of defendant’s driver caused plaintiff to do tbe obvious thing to avoid collision — turned out of tbe way to the north. We find no reversible error, and tbe judgment is affirmed. Affirmed. ANDERSON, C. X, and SOMERVILLE and BROWN, JJ., -concur. Footnotes [1] 215 Ala. 678.