Opinion
6 Div. 262.
October 20, 1921.
Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson, Judge.
Wood Pritchard, of Birmingham, for appellant.
An automobile should stop, rather than kill or injure a person. Acts 1919, p. 641; 12 Ala. App. 336, 66 So. 914; 36 Ind. App. 305, 72 N.E. 189; 203 Ill. 608, 68 N.E. 89; 51 Kan. 651, 33 P. 287, 24 L.R.A. 557; 99 Wn. 483, 170 P. 123. The court erred in the instructions as to the test of negligence. 193 Ala. 614, 69 So. 137; 195 Ala. 290, 70 So. 162; 200 Ala. 282, 76 So. 48; 202 Ala. 87, 79 So. 479; 17 Ala. App. 25, 81 So. 361. The court should have charged as to the relative situation of the parties and the duties arising therefrom. 168 Cal. 473, 143 P. 743; 89 Wn. 653, 155 P. 147; 6 Pennewill (Del.) 224, 65 A. 778; 189 Mass. 591, 76 N.E. 222.
Hartley Fite, of Birmingham, for appellees.
Brief of counsel did not reach Reporter.
The plaintiff testified that he was examined, as to his physical injuries, by several physicians, including one Dr. Collier. Plaintiff's counsel asked him "at whose instance was he examined by Dr. Collier," which question, on objection, was excluded. In the absence of a proper showing that the answer would have been relevant to some issue in the case, the question was properly excluded.
Several other assignments relating to the exclusion of questions propounded to witness by plaintiff's counsel are without merit, and indeed are not sufficiently argued to merit consideration.
Charge No. 1, refused to plaintiff, predicates a recovery by plaintiff upon defendants' failure, under the circumstances hypothesized, to give warning of their approach. It is bad because it omits from the bases of liability the element of proximate cause, and also the element of plaintiff's freedom from contributory negligence — both of which were essential issues in the case, and were questions of fact for the jury. Ala. S. W. Co. v. Thompson, 166 Ala. 460, 52 So. 75.
Charge No. 5, refused to plaintiff, instructed the jury that —
"The driver of an automobile approaching a pedestrian upon a street, must have his car under such control as that it may be promptly stopped, and must sound such warning to announce the approach of the automobile as to make a collision improbable."
This charge is manifestly bad. There is no duty to keep a car under such control, unless it would be apparent to a reasonably prudent man that the failure to do so would be dangerous to the pedestrian, or unless the pedestrian were in such a position on the highway that a reasonably prudent man, observing him, would take that precaution. Nor is there any duty to so warn the pedestrian as to "make a collision improbable."
Charge No. 6, refused to plaintiff, was argumentative for the most part, and its refusal cannot be held as error.
Charge No. 7, refused to plaintiff, merely says to the jury that they may look to the evidence in order to find whether defendants, in their operation of the car, were duly careful as to its speed and direction, and as to passing by plaintiff at a distance that was prudent and safe. The charge states no proposition of law, and while it states an elementary proposition as to the source of the jury's information as to relevant facts in the case, they were fully instructed as to that by the general oral charge of the court. The charge could have been properly given, but its refusal was not prejudicial error.
It is not the duty of an automobile driver to so operate his car, though in the immediate vicinity of another accident, as that he may cause no further accident. He must always operate it with due care under the circumstances, and when he does that he is not responsible for accidents which may nevertheless result. Refused charge No. 9, which imposed such a responsibility, was properly refused.
Nor was it the duty of the automobile driver, as a matter of law, to stop his car upon approaching a crowd on the street, though necessary in fact to avoid striking the plaintiff, who was in the crowd, unless the number and position of the crowd, and the position of plaintiff in the crowd, were such as to make it apparent to a man of reasonable care and prudence, in the exercise of due care, that that precaution was necessary in order to avoid injuring some one in the crowd. Refused charge No. 10 omits the element of due care and reasonable prudence as a factor in defendants' liability, and was therefore bad and properly refused.
Charge No. 11, refused to plaintiff, is subject to the same infirmity as charge 10, and was also properly refused.
At the request of defendants the trial judge instructed the jury:
"That Yielding [the driver] had the right, exercising reasonable care, to drive past the point where the plaintiff was standing, and was not required to stop his automobile before proceeding past such point, unless he had reasonable cause to believe that so driving past would endanger the plaintiff."
Appellant's chief criticism of this charge is that it does not require the belief of the driver to be the belief of a reasonably careful and prudent man. But reasonable cause for believing a thing as a fact has always been defined as such grounds of belief as would warrant a cautious man in the conclusion that it is true. Jordan v. A. G. S. R. R. Co., 81 Ala. 220, 8 So. 191; Hanchey v. Brunson, 175 Ala. 236, 56 So. 971, Ann. Cas. 1914C, 804. So, we think that the language of this charge must be held to import all that appellant contends it should have expressed. We hold that it correctly states the right and duty of a car driver under the circumstances shown. None of the cases cited and discussed by appellant's counsel hold anything to the contrary with respect to a charge framed in the language of this one.
In conclusion, we may add that the oral charge instructed the jury clearly and fully as to the issues in the case, and as to the duty of both parties in their use of the street, and they could not reasonably have misunderstood either the law of the case or its application to the facts in evidence.
Finding no prejudicial error in the record, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.