Barbour v. Shebor

SIMPSON, J. This is an action by the appellee against the appellant for damages on account of personal injuries claimed to have been received by the plaintiff by being struct by an automobile of the defendant’s on the streets of Birmingham. The court did not err in overruling the demurrer to count B of the complaint. The count does not attempt to set out the facts constituting wanton conduct, but in accordance with the decision of this court, merely alleges that the injuries were received as the proximate consequence of “the wanton act of defendant’s servant or agent while acting within the line and scope of his authority as such.”—So. Ry. Co. v. Weatherlow, 153 Ala. 171, 44 South. 1019; Martin’s Case, 117 Ala. 367, 23 South. 231; Burgess’ Case, 114 Ala. 587, 22 South. 169. The case of Alabama Great Southern Railroad [310] Co. v. Guest, 144 Ala. 373, 381, 382, 39 South. 654, does not discuss the necessary allegations in the complaint as to wantonness, but deals with the evidence necessary to support such a count, which, according to the statement of the court, seems to have been in general terms, just as the present one is. The same is true with regard to the case of Birmingham Railway, Light & Power Co. v. Williams, 158 Ala. 381, 48 South. 93. The third plea is an attempt to apply to injuries by automobiles on streets the “look and listen” law as applicable to railroads. There is no warrant in law for such application. A railroad acquires a right of way for the express purpose of running trains at a rapid rate of speed over the same, and travelers on the public highways, knowing this fact, are required to observe due caution in approaching the tracks. Even as to street railroads, the tracks mark the line of danger, so that the pedestrian knows just where to look and how to avoid the point of peril; but automobiles have no special privileges in the streets, more than other vehicles. They simply travel upon the streets with the same privileges and obligations as other vehicles, and the mere fact that they can run faster than other vehicles does not give them any right to run at a dangerous rate of speed, any more than the fact that one man drives a race horse gives him a right to travel the streets at a higher rate of speed than another who drives a plug. The simple rule is that drivers on the streets and pedestrians, each recognizing the rights of the other, are required to exercise reasonable care.—Hennesey v. Taylor, 189 Mass. 583. 76 N. E. 224, 3 L. R. A. (N. S.) 345, 4 Ann. Cas. 396, and notes; Busher v. N. Y. Transp. Co., 106 App. Div. 493, 94 N. Y. Supp. 798; Caesar v. Fifth Avenue Coach Co., 45 Misc. Rep. 331, 90 N. Y. Supp. 359; Kathmeyer v. Mehl (N. J.) 60 [311] Atl. 40; Berry, Law of Automob. § 124, p. 113; Id., § 171, p. 166. This court, in speaking of tbe relative duties and liabilities of street railroads and pedestrians, says: “Tbe duty of tbe company to recognize tbe rights of persons in the lawful use of the streets is imperative. As the company is held to a high degree of care, to a degree commensurate with the circumstances of each particular case, so likewise the citizen is held. * * * Each party, in.order to avoid accident, is bound to exercise ordinary care and such reasonable prudence and precaution as the attending circumstances may require.”—Birmingham Railway, Light & Power Co. v. Williams, 158 Ala. 387, 48 South. 96. There was no error in sustaining the demurrer to plea 3, as an answer to count A of the complaint. For reasons already assigned, there was no error in sustaining the demurrer to plea 3 as an answer to count 3 of the complaint. For reasons already stated, and because plea 5 has no application to the wanton counts of the complaint, there was no error in sustaining the demurrer to said plea. While plea 6 might have been more definite, by stating how far the plaintiff was from the automobile when he stopped in front of it, yet, understanding the meaning of the words “immediately in front of it” to indicate close proximity, the plea was a good answer to count A, which was for simple negligence, and the court erred in sustaining the demurrer to said plea. For the same reason, the demurrer to plea 4 should have been overruled. Plea 6, like others, was addressed “to each and every count of the complaint,” which was the equivalent of filing a separate plea to each count of the complaint. The action of the court in sustaining the demurrer to [312] said plea operated as if it had sustained the several demurrers to each count of the complaint in one order, without separating them, in which case the court would be in error, unless all of the pleas were subject to the demurrer. There was no error in the refusal to give the first charge requested by the defendant, as it was singling-out a part of the evidence and requiring a charge on that fact alone, without regard to whether the negligent act caused the injury. It was calculated to mislead the jury. There was no error in the refusal to give the fourth charge requested by the defendant. It was a question for the jury whether the driving of the auto car, at the rate at which it was moving- over the streets of the city, was, under the evidence, wanton. Prom what has been said as to count B, there was no error in refusing to give charge 6, requested by the defendant. The seventh charge requested by the defendant ignored the wanton count, and was properly refused. The tenth charge was properly refused, as it was calculated to mislead the jury on the question of contributory negligence as affecting the wanton count; also, the • question of the plaintiff’s negligence was, under the evidence, a matter for the jury. For the same reason, the ignoring of the wanton count, charges 11, 12, 13, and 14 were properly refused. The judgment of the court is reversed, and the cause remanded. Reversed and remanded. All the Justices concur, save Dowdell, O. J., and McClellan, J., not sitting, and Anderson and Sayre, JJ., who concur, except that they think that plea 3 was good as to count A, and that the court erred in sustaining the demurrer to the same.