112 So. 230 | Ala. | 1927
Plaintiff alleged to have been injured by an automobile on a public street of the city on February 15, 1926, and two months thereafter her suit for damages was called for trial. She was "brought into court upon a stretcher, accompanied" by trained nurses. Plaintiff announced ready, and counsel for the defendant moved a continuance on account of the physical condition of plaintiff. The court overruled the motion, and the defendant excepted. Thereupon the defendant answered in short by consent, by the general issue, and contributory negligence. The trial was had upon the simple negligence count and that charging the violation of the provisions of a city ordinance proximately causing her injuries.
Assignment of error not duly insisted upon will not be considered. Georgia Cotton Co. v. Lee,
It is not controverted that, where a plea of contributory negligence is proven, it is a defense to a cause of action based on simple negligence. B. R. L. P. Co. v. Bynum,
The rule of submission to the jury of controverted fact, for its determination, has often been stated and applied. McMillan v. Aiken,
In Peters v. Southern Rwy. Co.,
It may be unnecessary to observe that the mere violation of a city ordinance does not have the effect or afford a cause of action, unless that violation is the proximate cause of, and contribution to, the injury as an immediate and efficient cause thereof, that is to say, the violation of the ordinance in connection with the other evidence must show that said violation of municipal ordinance was a part of the immediate cause and injury and as a proximate cause thereof, and not a remote cause thereof. Vaughn v. Dwight Mfg. Co.,
The court takes judicial knowledge of the progress and development of science generally (Luke v. Calhoun Co.,
Under the rule, we cannot say from the evidence that the verdict is wrong and unjust and was the result of improper motive or conduct as heretofore often defined by this court. Cobb v. Malone,
We find nothing in the evidence which takes plaintiff's case out of the general rule of the time and place that the negligence is not imputed, as a matter of law, to pedestrians crossing a street in a city, at a regular crossing therefor. She was not required to stop, look, and listen. No duty is imposed upon pedestrians to keep a special lookout for automobiles or approaching vehicles, but only the general duty to exercise due care under the circumstances. Adler v. Martin,
In Adler v. Martin,
The plaintiff was walking east along the north sidewalk of Dexter avenue in this city, and approaching Decatur street at the regular crossing thereof, looked up and down last-named street, and saw no automobile approaching. When she had made a few steps upon that street from the curbing, she was struck by a car driven by the defendant. He had come (rapidly, one phase of the evidence shows) from the same way and up Dexter avenue, without sounding an alarm, and in violation of a city ordinance requiring him to reach the center of the intersection of the street before turning — such was plaintiff's evidence. Plaintiff was not required to anticipate that the car would come as and where it did and injure her. She was carried by the car some distance, when it was stopped by the driver, and she was released therefrom. Defendant testified that he went about 10 or 15 feet after striking plaintiff. He admitted that he first saw her about "25 feet away," and saw her when he was within 15 feet of her and "she was looking down, fooling with a paper sack," when he began to stop or slow down his car. A careful examination of the evidence discloses no error in rulings on the trial, oral instructions, or in the refusal of charges requested, or in the declining of the motion for a new trial. Under the rule and the evidence, we cannot say the verdict was excessive.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.