Ray v. Brannan

May 18, 1916

Reporters:: , ,
Before:: Somerville

SOMERVILLE, J.

(1) The written charge given to the jury at the defendant’s request was, in effect, an affirmative instruction to find for the defendant. The proposition of law it declares is that, since vehicles traveling on Government street have the “right of way” at the crossing over vehicles traveling on Warren street, a vehicle on Warren street must at its peril avoid collision with a vehicle on Government street, no matter how carefully and lawfully the former, and no matter how recklessly and unlawfully the latter, may be traveling.

This is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not sound law, and the “right of way” ordinance cannot be reasonably construed as declaratory of such a result. It very clearly means that when a vehicle on each of these streets approaches their intersection, visible to each other, at such a time and such a speed as would render their collision imminent if one should not give way to the other, then the vehicle going north or south must, at its peril, be so conducted, circumstances permitting, as to allow the vehicle going east or west to safely pass in front. The conditions of traffic on intersecting streets may reasonably require that such priority be given to one street over another.

But the mere fact that one vehicle has the “right of way” over others crossing its path does not release the vehicle thus *116favored from the duty of exercising due care not to injure the others at the place of crossing. On the contrary, the duty of due care to avoid collisions remains reciprocal, and the driver of each vehicle may, • within reasonable limits, rely ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Upon the discharge of his duty by the other — including, among other things, the reasonable observance of those municipal regulations with respect to speed and position, which are designed not only to facilitate traffic and travel, but also to make it safe for the public as far as is humanly possible.—Weatherly v. N. C. & St. L. Ry., 166 Ala. 575, 584, 51 South. 959; 33 Cyc. 924; A. G. S. R. R. Co. v. McDaniel, 192 Ala. 639, 69 South. 60.

(2) But this right to expect the observance of specific legal duties by others does not excuse any one from observing the specific duties imposed by law upon himself; and his failure to do so, if the proximate cause of his injury, would as a matter of law defeat his right of recovery.—L. & N. R. R. Co. v. Mothershed, 97 Ala. 261, 268, 12 South. 714; A. G. S. R. R. Co. v. Roach, 110 Ala. 266, 20 South. 132.

(3) When, however, the plaintiff has violated no specific legal duty so as to become guilty of negligence per se, the extent to which he may rely upon the defendant’s observance either of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍specific duty, or general due care to avoid injuring him, is a question for the jury under the circumstances of each case.

(4) So, in this case, if the plaintiff was observing the specific duties enjoined upon him by the traffic ordinances, he was not bound to approach the crossing at a lower rate of speed than would be reasonably necessary to secure to the defendant a safe right of way, assuming that the defendant was also observing the same duties as to speed and position, as prescribed by law. What speed would reasonably conserve this purpose would depend upon the width of the streets, the number of vehicles using the crossing, the scope of the drivers’ view, and the facility with which cars can be halted or controlled. The plaintiff’s duty was one of due care under the circumstances, and the question was necessarily one of fact for the jury.

It is quite clear that the charge under consideration was both erroneous and prejudicial, and its giving to the jury must work a reversal of the judgment.

We do ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not think that the qualifying clause, “everything being equal,” in the right of way ordinance, has any bearing on the present case. It doubtless has reference to the preferred classes *117of vehicles enumerated in the first part of the section, but very clearly not to any equality in the observance of traffic regulations by the crossing vehicles. . . . .

(5) Charge 4 refused to plaintiff is abstractly correct, but would have been misleading as. applied to‘the issues of the instant case, since it ignored the qualifying effect of contributory negligence by plaintiff.

Charge 7 refused to plaintiff ignored the question of defendant’s right of way over plaintiff, and plaintiff’s obligations with respect thereto; and omitted, also, the predicate that the collision was the proximate result of defendant’s violation of the ordinance.

Each of these charges was therefore properly refused.

(6) We think it was clearly competent for plaintiff, who it appears saw defendant’s car 10 or 15 feet before he (plaintiff) reached Government street, to state that he could not see or estimate its position on Government street when he first ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍saw it coming. This was highly relevant to the question of plaintiff’s due care in the effort to avoid the collision. In excluding the question designed to elicit this fact, there was prejudicial error to plaintiff.

(7) On the other hand, whether plaintiff’s car ran into defendant’s, or vice versa, would have been, under the facts shown, a mere opinion of the witness, and the question was properly excluded.

For the errors noted, the judgment will be reversed, and the cause remanded.

Reversed and remanded.

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