Watts v. Montgomery Traction Co., 57 So. 471

57 So. 471 | Ala. | 1912

ANDERSON, J.

The decisions as to the legal effect of violating a statute or ordinance are not harmonious. In some cases it is held that such violation is not negligence per se, but that it is competent evidence of negligence, and may be sufficient to justify a jury in finding negligence in fact. — 29 Cyc. 437, and cases cited in note. HoAvever, it is settled in Alabama, and we think it is the Aveight of authority, that a violation of a statute or an ordinance is negligence per se, and a person proximately injured thereby may recover for such injuries against the violator of the law. — Kansas City R. R. v. Flippo, 138 Ala. 487, 35 South. 457; Sloss-Sheffield Co. v. Sharp, 156 Ala. 289, 47 South. 279; Wise v. Morgan, 101 Tenn. 273, 48 S. W. 971, 44 L. R. A. 548; Parker v. Barnard, 135 Mass. 116, 46 Am. St. Rep. 450; Newcomb v. Boston Prot. Dpmt., 146 Mass. 596, 16 N. E. 555, 4 Am, St. Rep. 354; Terre Haute R. R. v. Williams, 172 Ill. 379, 50 N. E. 116, 64 Am. St. Rep. 44; Rosse v. St. Paul R. R., 68 Minn. 216, 71 N. W. 20, 37 L. R. A. 591, 64 Am. St. Rep. 472.

We are not cited to and have found no Alabama case where the violation of a statute or ordinance by the injured party was pleaded by the defendant by way of contributory negligence; yet we see no reason why such a violation, if proximately causing the injury complained of, cannot be set up as a defense to the simple negligence charged in the complaint. Such a defense has been approved, and we think properly so, in the cases of Broschart v. Tuttle, 59 Conn. 1, 21 Atl. 925, 11 L. R. A. 33; Weller v. Chicago R. R., 120 Mo. 635, 23 S. W. 1061. The statute or ordinance violated, however, must have been enacted for the benefit of the party who seeks to invoke its violation as distinguished from the public generally or a class .to whom the ordinance necessarily applies. — 29 Cyc. 438; L. & N. R. R. Co. v. Murphree, 129 Ala. 432, 29 South. 592; Cen. of Ga. Rwy. v. Sturgis, 149 Ala. 573, 43 South. 96.

A municipality would no doubt have the right, under its police power, to regulate the travel upon its streets so as to prevent congestion and collision, and could thereby protect all persons using the streets, including street cars; but it is manifest that the ordinance in question was not intended for the protection of street railways, as the wording and meaning of same does not exclude vehicles from their tracks. The ordinance does not require the drivers of vehicles to keep off of the street railway tracks, but only requires them to keep on the side of the street to the right; that is, they must remain to the right of the center of the street. If they do this, they do not violate the ordinance, notwithstanding they may be upon the track of a street car line. It may be that most of the street car tracks are laid in the center of the street, and an ordinance requiring vehicles to stay to the right of the track, if there is space enough for them to,do so, would no doubt be á reasonable one; but such is ''not the present ordinance, as it only requires the vehicle to be to the right of the center of the street. Again, there may be street car tracks laid within either side of the streets, and, if a driver kept to the right of the center of the street, he would not violate the ordinance, although he may drive upon or along the' street car track. It is plain that the ordinance in question was not intended to keep vehicles off of street car tracks or for the protection of street car companies.

Plea 8, if not otherwise faulty, was subject to grounds 5, 11, and 12 of the plaintiff’s demurrer, and the trial couf-t erred-in not sustaining same.

The negligent failure of the plaintiff’s agent, Felder, to hollo, warn, or signal -the defendant’s motorman is a mere conclusion.-- There is nothing in the plea to indicate that'Felder knew of the approach of the car, and he cannot be said to be guilty of negligence for failing to give a signal to stop the car unless he knew it was approaching.

Aside from the infirmity of the eighth plea, the trial court erred in admitting the ordinance in evidence, over the objection of the plaintiff, as it was immaterial and irrelevant. The undisputed evidence shows that the auto was on the right-hand side of the street. The automobile was astride the south rail of the track, and which said south rail was 12 feet from the south curb. The north rail was 15 feet from the north curb, and was therefore in the center of the street, and the auto was to the right of said 'nortlg rail and was upon the right-hand side of the street. — See testimony of Berry, page 16 of the record.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

All the Justices concur, except Dowdell, C. J., not sitting.