Racine Tire Co. v. Grady
88 So. 337
Ala.
1921
Check Treatment
GARDNER, J.

[1] Thе correctness of the two charges, given at the request of the defendant, which appear in the statement of the case, is the only question presented here for consideration. By these charges, the cоurt in substance instructed the jury that, If from the evidence plaintiff, without any necessity therefor, placed himself in a position of danger through inadvertence, forgetfulness, inattention, absent-mindedness, or carelessness, he would bе guilty of contributory negligence as to bar his recovery under count “A,” if they believe such negligence proximately contributed to cause his injury.

Under the general rule recognized by the former decisions of this court, these charges correctly ‍‌​‌​‌​​‌‌​​​​‌‌​‌‌‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌‌​‌‌​​‌‌‍stated the law, as declared by this court in the recent case of City of Birmingham v. Edwards, 201 Ala. 251, 77 South. 841. In that dеcision, we cited some of our former eases, to which we may add, as bearing upon the same question, Chеwning v. Ensley Ry. Co., 100 Ala. 493, 14 South. 204; Tuscaloosa Water Co. v. Herren, 131 Ala. 81, 31 South. 444.

The court below seems to have relied upon the Edwards Case, supra, as condemning the charges ;■ but the Edwards Case was intended as being confined to suits by pedestrians against the municipality for injuries resulting from a defect ‍‌​‌​‌​​‌‌​​​​‌‌​‌‌‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌‌​‌‌​​‌‌‍in its street and sidewalks, and was not intended .to excuse negligence on the part of the pedestrian as to traffic situations on account of mere forget-'’ fulness or inattention.

[2] A pedestrian upon the city streets has the right to assume, unless he has knowledge or reason to believe to the contrary, that the street is in a reasonably safe condition for travel, and this right to so рresume on the part of the pedestrian was extended by the Supreme Court of Wisconsin in Simonds v. Baraboo, 93 Wis. 40, 67 N. W. 40, 57 Am. St. Rep. 895, tо cases where the pedestrian had knowledge of the previous existence of the defect in the sidewalk, which was in a conspicuous place, and of such character ‍‌​‌​‌​​‌‌​​​​‌‌​‌‌‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌‌​‌‌​​‌‌‍that, with very little time and expensе, it could have been safely repaired. The authorities cited in the note of Lerner v. City of Philadelphia, 221 Pa. 294, 70 Atl. 755, 21 L. R. A. (N. S.) 614, dis *425 сlose that the overwhelming weight of judicial opinion permits pedestrians in such cases to offer as exсuse for momentary forgetfulness some reasonable excuse therefor, which must arise, however, apаrt from mere inattention.

In Mayor and Aldermen v. Cain, 128 Tenn. 250, 159 S. W. 1084, Ann. Cas. 1915B, 762, the Supreme Court of Tennessee points out many reasonable causes which may he of•fere.d as excuse in such cases for forgetfulness, inattention, or inadvertence, such as arisе from a runaway ‍‌​‌​‌​​‌‌​​​​‌‌​‌‌‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌‌​‌‌​​‌‌‍horse, a rabid dog, or the approach of any dangerous animal, a sudden fire alarm, the suddenly communicated illness of a friend or relative, and other instances, some of which were noted in the Edwаrds Case.

[3] The continuing duty on the part of the city to keep its streets in reasonable repair for pedestrians, and the right of pedestrians to so assume, places cases of that character in a class tо themselves. As to whether or not this exception to the general rule — for such it must be recognized — should be extended to cases arising under other circumstances, the authorities are in conflict. But this court indicated in the Edwards Case that the previous decisions of this court would preclude its further extension. This, however, it is unnecessary tо decide, for even if it should be conceded for the sake of argument that the exception could hе extended so as to embrace the instant case, yet there is no evidence here justifying its applicаtion, for, as previously noted, the cause given as excuse for the momentary forgetfulness must he something aрart from inattention itself.

[4] Here there was nothing unusual to divert the attention of the plaintiff, and give excuse for momentary forgetfulness. True, he seemed to have a roll of bills in his hands, and exchanged his money and hank book from оne pocket to another, and there is some intimation in brief that his mind was absorbed in financial affairs, which would excuse his forgetfulness to look, after passing in front of the street car, for approaching vehicles оr automobiles. ‍‌​‌​‌​​‌‌​​​​‌‌​‌‌‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌‌​‌‌​​‌‌‍To this proposition we cannot agree, for we apprehend that, if absorption of thought upon money matters were to be recognized as an excuse for forgetfulness, then certainly no аdult male person with a family to support in these strenuous times could ever be charged with negligence as a matter of law on that account. In the courtroom, at léast, money would no longer be known as the “root оf all evil,” but as an ever-present excuse for forgetfulness.

The plaintiff testified that he was thoroughly familiar with this crоssing, going over it each morning about the same time, for five or six years, and knew the frequency of travel thereon. He had passed the car two steps or more, and admits he does not know whether or not he looked fоr approaching vehicles. The degree of care required of the ordinary prudent person under suсh circumstances called for the exercise of his faculties, and placed this duty upon him, If, as he insists, “looking would have done him no good,” then his failure to look would not have been the proximate contributing cause of the accident, but this was a question for the jury, which was not at all affected by these given charges.

We find nothing in the еvidence which would bring the case within the exception, even conceding — without déciding — its application tо such a situation, and the charges, being correct instructions on the testimony in the case, were properly given, and the motion for a new trial was erroneously granted upon this ground.

It results, therefore, that the judgment granting the new trial will be reversed, and judgment here rendered denying same.

Reversed and rendered.

ANDERSON, O. X, and SAYRE and MILLER, XL, concur.