Morrison v. Clark

72 So. 305 | Ala. | 1916

THOMAS, J.

The case was tried on a simple negligence count, charging that: “While plaintiff and his wife, Sarah E. Clark, were in a vehicle, to-wit, a buggy, upon a public highway in the city of Birmingham, Ala., an automobile being operated by defendant ran into, upon, or against said vehicle in. which plaintiff and his said wife were, and as a proximate consequence thereof, etc. * * * Plaintiff alleges that said automobile ran upon or against or into said vehicle in which plaintiff was on the occasion aforesaid, and plaintiff suffered the personal injuries and damages to himself and damages and loss to his said property, and the consequent damages and loss to him from the said injuries and damages to his said wife, all as a proximate consequence of the negligence of defendant, in this, to-wit, defendant negligently caused, or. allowed said automobile to run upon or against or into said vehicle on the occasion aforesaid.”

(1) The second count, charging a willful and intentional injury inflicted by the defendant’s servant or agent, failed to aver that such servant or agent of the defendant, having charge or control of said car at the time of the infliction of the injury, was acting within the line and scope of his employment by the defendants. This defect was taken by demurrer that should have been sustained. — Addington v. Amer. Casting Co., 186 Ala. 92, 64 South. 614; Wise, Adm’r, v. Curl, et al., 177 Ala. 324, 58 South. 286; Daniels v. Carney, 148 Ala. 81, 86, 42 South. 452, 7 L. R. A. (N. S.) 920, 121 Am. St. Rep. 34, 12 Ann. Cas. 612; Ala. Gt. Sou. R. R. Co. v. Pouncey, 7 Ala. App. 548, 61 South. 601.

(2) It is clear that the question whether the agent or servant in charge of the car at the time of the infliction of said injury was acting within the line and scope of his employment was correctly submitted for the decision of the jury. From the undisputed evidence it is likewise clear that the jury found for the defendant under the second count of the complaint, and that punitive damages were not awarded.

The evidence shows that by reason of the collision the plaintiff sustained the loss of $110 on his horse, $2 or $3 damage to the harness, $20 damages for the buggy that was destroyed, incurred a medical bill of $100 or more, and sustained loss of time from his labor, where he was earning $100 a month before the accident, or the value of his services in nursing his wife, on account of her injuries caused by the collision, for the period of about three months. Thus it is clear, that the verdict for $250 was on the first count, for the actual damages of the plaintiff sustained and claimed, and not on the second count, for punitive or exemplary damages. We are of opinion, from the entire record, that the defendant was not injuriously affected in his substantial rights by the ruling on demurrer and the refusal to give charge No. 2.

(3) Adverting to the first count, in which is the averment that the “defendant negligently caused or allowed said automobile to run upon or against or into said vehicle on the occasion aforesaid,” in City Del. Co. v. Henry, 139 Ala. 161, 34 South. 389, this court held that as to simple negligence, an averment that the “defendant” did the wrongful act could be maintained by proof that defendant’s servants or agents did the act of negligence, while acting within the line and scope of their employment by the defendant. — 31 Cyc. 1626. Moreover, there was no objection to the evidence on the ground of a variance; therefore the court could not be put in error. — Circuit court rule No. 34, 175 Ala. xxi.

(4) If, then, there was evidence to warrant the jury in drawing the inference that the wrongful act was committed by the defendant acting through servants or agents who, at the time, were in the discharge of the master’s business, and were acting within the scope of the employment, then the affirmative charges requested by the defendant, as A and 1, were properly refused.

(5) When there is evidence which tends to establish the plaintiff’s case, the court should not withdraw the cause from the jury. — Tobler v. Pioneer Mining & Mfg. Co.,, 166 Ala. 517, 52 South. 86; McCormack v. Lowe, 151 Ala. 313, 44 South. 47; M., J. & K. C. R. R. Co. v. Bromberg, 141 Ala. 258, 37 South. 395; Shipp v. Shelton, 193 Ala. 658, 69 South. 102; Amerson v. C. C. & I. Co., 194 Ala. 175, 69 South. 601; Holmes v. Bloch, infra, 71 South. 670; L. & N. R. R. Co. v. Jenkins, infra, 72 South. 68. An examination of the evidence shows that this question of fact was properly submitted to the jitry.

The tendency of the evidence in the case at bar is more nearly analogous to that in Levine v. Ferlisi, 192 Ala. 362, 68 South. 269, being different from that in the case of Parker v. Wilson, 179 Ala. 361, 69 South. 150, 43 L. R. A. (N. S.) 87, and Armstrong v. Sellers, 182 Ala. 582, 62 South. 28.

Observance of the rule of the road is becoming moré important, with the increasing use of steam, electric, and motor power' vehicles on the public highways. — Berry on Automobile Law, § 119; Parker v. Wilson, supra; Gen. Acts 1911, pp. 640-642. In Sherman & Redfield on the Law of Negligence, vol. 3 (6th Ed.) § 649, it is said: “It is a universal custom under law in America for travelers, vehicles, and animals under the charge of man, to take the right hand of the road when meeting each other, if it is reasonable practicable to do so; and this rule, meaning that one should seasonably take the right hand, is enforced by statute in many states, so far as it relates to travelers in vehicles or on horseback. The statutes upon this subject generally prescribe that travelers shall pass to the right of the ‘center of the road.’ This means the center of the lawfully worked part of the road. No one is bound to leave that part of the road while there is room for other travelers to pass upon it, even though the smooth part be entirely on one side of the road.”

(6, 7) It is generally accepted that vehicles, whether automobiles, horse-drawn conveyances, or bicycles, when meeting orí the highways, must turn seasonably to the right of the center of the traveled portion of the highway in order to give each other room to pass. — Slaughter v. Goldberg, et al., 26 Cal. App. 317, 147 Pac. 90. A driver may use any part of the highway except under special circumstances, and when meeting another vehicle or a person. At the time of such meeting and passing, the duty of each to the other is to keep to the right. — Giles v. Ternes, 93 Kan. 140, 145, 143 Pac. 491; Ternes v. Giles, 93 Kan. 435, 144 Pac. 1014; Segerstrom v. Lawrence, 64 Wash. 245, 247, 116 Pac. 876. Each has a right to presume that the other will obey the rule of the road in meeting and passing. — Medlin v. Spazier, 23 Cal. App. 243, 137 Pac. 1078; 29 Cyc. 516.

(8) Where, however, a collision occurs in such passing on the highway, the presence of one on the left side of the road may be explained or justified as the particular circumstances or exigencies of the case may warrant. — Johnson v. Small, 5 B. Mon. (Ky.) 25; 3 Shearman & Redfield on Neg. § 649; Elliott on Roads and Streets, 620; Clay v. Wood, 5 Esp. 44; Lloyd v. Calhoun, 78 Wash. 438, 139 Pac. 231; Slaughter v. Goldberg, et al., supra; Riepe v. Elting, 89 Iowa, 82, 89, 56 N. W. 285, 26 L. R. A. 769, 48 Am. St. Rep. 356; Wrinn v. Jones, 111 Mass. 360; Hubbard v. Bartholomew, 163 Iowa, 58, 144 N. W. 13, 49 L. R. A. (N. S. 443; Herdman v. Zwart, 167 Iowa, 500, 149 N. W. 631; Giles v. Ternes, supra.

When, however, the collision occurs in meeting with one driving on the left side of the highway, the being on the wrong side of the highway amounts only to prima facie evidence of negligence. — Riepe v. Elting, supra; Segerstrom v. Lawrence, supra; Herdman v. Zwart, supra; Cook v. Fogarty, 103 Iowa 504, 72 N. W. 677, 39 L. R. A. 488; Hubbard v. Bartholomew, supra.

(9) It is, likewise, evidence of-due care that one was driving on the proper side of the road when the collision occurred.— Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404, 35 L. R. A. (N. S.) 701.

(10) But the driver of a vehicle proceeding on the “wrong side” of the highway is not liable for injury sustained by another in collision with his conveyance, unless the negligent act of driving on the wrong side was the proximate cause of the injury. There must be causal connection between the unlawful or wrongful act of driving on the left side, and the resulting injury. —Herdman v. Zwart, supra; Giles v. Ternes, supra.

The courts have declared that where driving -on the left side of the highway is the violation of an ordinance or a statute, such driver’s rights are inferior to the rights of travelers going in the opposite direction (Hiscock v. Phinney, 81 Wash. 117, 142 Pac. 461; Hubbard v. Bartholomew, supra); that statutes and ordinances, requiring travelers meeting on the highway to turn to the right, are to be interpreted as meaning that they shall do so seasonably, so that neither shall be impeded or retarded in the progress by reason of the other’s occupying more than his portion of the road (Gen. Acts 1911, p. 642; Segerstrom v. Lawrence, supra); and that statutes and ordinances regulating the conduct of drivers in overtaking and passing other vehicles on the highway are inapplicable to vehicles meeting and passing on the highway (Zellmer v. McTaigue, 170 Iowa, 534, 153 N. W. 77). The rule of the road finds statement in our statute as follows:

“Whenever a person operating a motor vehicle shall meet on a public highway any other person riding or driving a horse or horses or other draft animals or any other vehicle, the person so operating such motor vehicle shall seasonably turn the same to the right of the center of such highway so as to pass without interference. Any person so operating a motor vehicle shall, on overtaking any such horse, draft animal or other vehicle pass on the left side thereof and the rider or driver of such horse, draft animal or other vehicle shall, as soon as practicable, turn to the right so as to allow free passage on the left. Any such person so operating a motor vehicle shall, at the intersection of public highway keep to the right of the intersection of the center of such highway when turning to the right and pass to the right of such intersection when turning to the left.” — Acts 1911, p. 642, § 20.

(11) The car driven by defendant’s son was approaching from the rear of plaintiff and attempting to pass, when the collision occurred. The duty was upon those in charge of the automobile, approaching arid attempting to pass the vehicle, to have the car under such control as not to collide with plaintiff’s vehicle, as they undertook to pass on the left side thereof. They were likewise under the duty not to undertake to pass until the right of way for free passage had been accorded by the driver of the vehicle ahead, or actually existed by the circumstances of the place. The statute places the duty bn the first rider or driver to turn to the right so as to allow free passage on the left, only after notice and “as soon as practicable” according to the reasonable appearance of the situation. — Overton v. Bush, 2 Ala. App. 623, 56 South. 852.

(12, 13) The jury were properly instructed in charge 8, and no error was committed in refusing charge 16, requested by the defendants.

(14) By charge No. 11, defendants sought to have the jury instructed to find for the defendants, if the mind of any one juror was in a state of doubt or uncertainty. This fact might have warranted a mistrial, but not a verdict for the defendants.— Hale v. State, 122 Ala. 85, 26 South. 236; Goldsmith v. State, 105 Ala. 8, 16 South. 933; Pickens v. State, 115 Ala. 42, 22 South. 551; B. R. L. & P. Co. v. Humphries, 171 Ala. 291, 54 South. 613; Carter, et al. v. State, 103 Ala. 93, 15 South. 893; Cunningham v. State, 117 Ala. 59, 23 South. 693; A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84.

(15) The husband may recover for loss of the services of his wife (So. Ry. Co. v. Crowder, 135 Ala. 417, 33 South. 335; Ala. City, etc., Co. v. Appleton, 171 Ala. 324, 54 South. 638, Ann. Cas. 1913A, 1181), for expenses incurred in the procurement of such medical or surgical skill as ordinary prudence would suggest to be necessary in the treatment of her injuries (B. R. L. & P. Co. v. Anderson, 163 Ala. 72, 50 South. 1021; Ala. City, etc., Co. v. Appleton, supra), and for the value of his services while nursing his wife (B. R. L. & P. Co. v. Chastain, 158 Ala. 421, 48 South. 85; So. Ry. Co. v. Crowder, supra; Bryan v. Stewart, 194 Ala. 353, 70 South. 123), where such damages proximately result from injuries wrongfully inflicted upon her..

Charge No. 4, requested by defendants, was properly refused.

(16) Whether Truman Morrison had the rightful control or charge of the automobile when the alleged injuries were inflicted was properly submited to the jury; and no error was committed by the refusal of charge D, requested by the defendants.

(17) If Morrison or Gayhart, within the line and scope of the employment by the defendants, had the right to take and to use the automobile on the occasion of the accident, as it was used, then charge B and E, requested by defendants, were misleading in the use of the words “desire,” and “wishes or desire.” Moreover, the law on this phase of the defendant’s evidence was given the jury in charges C, 9, 13, 14. It was not a question of the wish or desire of the master-but of the authority of the servant or agent in charge just before, and at the time of the collision, to have and operate the car.

The case is affirmed.

Anderson, C. J., and Mayfield and Somerville, JJ., concur.