68 So. 509 | Ala. Ct. App. | 1915
The complaint contains five counts, but the appellant, who was defendant below, was given the affirmative charge as to all of them except the first and third, which declared upon simple negligence in general terms. To these, the appellant filed six pleas; one of the general issue, and the others special pleas setting up contributory negligence.
The court sustained demurrers to three of these special pleas, but whether erroneously or not we need not consider, since there was certainly no injury, as the defenses set up in these pleas were practically, and to all intents and purposes, the same as were set up in the two special pleas to which the demurrer was overruled and upon which the trial was had.—Smith v. Davis, 150 Ala. 106, 43 South. 729; Creola, Lumber Co. v. Mills, 149 Ala. 474, 42 South. 1019; Ewart L. Co. v. Am. Cement P. Co., 9 Ala. App. 157, 62 South. 560.
The evidence for the plaintiff tended to show that at the time of the accident he was a police officer in the city of Mobile, who was at such time stationed, under orders from the municipal authorities, at the intersection of Royal and Dauphin streets for the purpose of looking after, regulating, and directing at that point, in conjunction with another officer there stationed, traffic of all kinds, to the end of preventing collisions and accidents; such point being, even on ordinary occasions, a much used and frequented crossing in the city,
The defendant has car tracks, over which it at the time was operating street cars, both on Royal and Dauphin streets, imbedded in and level with the street, intersecting each the other at right angles at the street crossing — the former (those on Royal street) running north and south, and the latter (those on Dauphin street) running east and west.
There is an ordinance of the city, introduced in evidence by the plaintiff, which prohibits any person driving a vehicle or operating a street car from crossing either street at this point until signaled by an officer, if an officer is in sight. The evidence for the plaintiff tends further to show that the car which struck him came south down Royal street, across Dauphin street, without a signal from either him or the other officer, each of whom was out in the street, open to view, at that point, and that the car struck plaintiff while his back was towards it, before the motorman gave any warning of its approach, either by ringing the gong or otherwise, and at a time when plaintiff did not know it had crossed the street and was approaching.
If this evidence be believed, the motorman was, in the event he saw the plaintiff, guilty of negligence in two particulars, to wit: First, he was guilty of negligence in crossing Dauphin street without a signal from either officer, which negligence, we conceive, could have proximately caused the injury to plaintiff, since the latter had a right to assume that the car would not cross Avith-out first receiving a signal to do so, and a consequenl right to act upon such assumption and to refrain from removing himself from the track until the car Avas so signaled, as until then he could assume, on the faith of a compliance by the motorman with the requirements
Relative to this theory of the case, what was said in Mobile L. & P. Co. v. Drooks, 11 Ala. App. 595, 66 South. 824, is appropriate here: “While it is perhaps true, as contended by defendant’s counsel, that under the circumstances of this case as detailed, the motorman was under no duty [if we ignore in the present case the ordinance mentioned] to stop the car, since the motorman had a right to' assume that the plaintiff, an adult, would, if conscious of the approach of the car, turn aside and get out of its way before it reached him, which he could easily have done by taking one step, * * * yet the motorman had no right to assume or presume, under the circumstances here, that the plaintiff [who had his back to it] was conscious of the approach of the car, and the motorman was consequently under duty to give plaintiff warning of such approach by sounding the going, ringing the bell, or otherwise.”—Mobile L. & P. Co. v. Drooks, supra, and authorities there cited.
Upon giving such warning the motorman may assume unless he knows or has good reason to believe that such person who is on or dangerously near the track is deaf, that such person hears such warning and will get out of the way of the danger; but even this assumption cannot be indulged beyond the time when the person’s danger becomes imminent. When such time arrives it becomes the duty of the motorman to stop the car and avoid the injury if he can do so, and his failure
On the other hand, if the motorman, as he seems to contend, did not see the plaintiff — a police officer out in the street directing the traffic at the crossing — then the motorman ivas guilty of negligence in failing to discover him, for it was the former’s duty to the public in general to keep a constant lookout ahead, and especially at this place, a much used and frequented street crossing.-Mobile L. & P. Co. v. Drooks, supra, and cases there cited.
On several theories, then, if plaintiff’s evidence he believed, he was entitled to recover under the allegations of the complaint, which, as before stated, declared upon simple negligence in general terms without specifying the particular acts thereof (Leach v. Bush, 57 Ala. 145) ; and it was entirely permissible to this end for the plaintiff to offer in evidence the ordinance mentioned, and to show its breach by the motorman (L. & N. R. R. Co. v. Christian-Moerlein Brew. Co., 150 Ala. 398, 43 South. 723; Yarbrough v. Carter, 179 Ala. 356, 60 South. 833).
What we have said is sufficient to indicate without the necessity for further discussion the reasons of our holding that the trial court did not err in those portions of its oral charge that were excepted to and assigned as error by defendant, or in refusing the numerous written instructions requested by defendant — some of which were affirmative instructions as to negligence and contributory negligence; some of which singled out and gave undue prominence to portions of the evidence; some of which, in predicating a verdict for defendant, ignored one or more of the theories before pointed out
We will not disturb the action of the trial court in declining, upon motion made by defendant during the progress of the trial, after the close of plaintiff’s evidence, to require the plaintiff to submit to a physical examination of his person by physicians. -Plaintiff’s evidence as to his injuries disclosed nothing more than had been alleged in the complaint, of which defendant had notice before entering upon the trial; and what our Supreme Court said in R. & D. R. R. Co. v. Greenwood, 99 Ala. 501, 14 South. 495, is applicable here: “Under the circumstances the motion was not seasonably made; and to have granted it would probably have been to have postponed the trial when it [the motion] might as well have been brought forward sufficiently early for this result to have been avoided.”—R. & D. R. R. Co. v. Greenwood, supra.
The trial court did not err in permitting the officer, who was stationed with plaintiff at the crossing mentioned, to testify as a witness for plaintiff that the car which struck plaintiff passed by this officer just before it struck plaintiff and so close to him that it touched his arm. This was clearly a part of the res gestae.
Nor did the court err in permitting plaintiff to show that no gong was sounded or other warning given of the approach of the car.
The fact, if it be a fact, that plaintiff prosecuted defendant’s motorman for the offense, and that unsuccessfully, was entirely immaterial to this case. Such pros-
We have noticed all points discussed in brief. As we find no error, the judgment is affirmed.
Affirmed.
