Birmingham Ry., Light Power Co. v. Barranco , 203 Ala. 639 ( 1920 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] To plaintiff's (appellee's) complaint, claiming damages for personal injuries resulting from the collision of defendant's (appellant's) street car with an automobile in which plaintiff was a passenger while the car and the automobile were in public thoroughfares of the city of Birmingham, the defendant interposed nine special pleas, besides a general traverse, setting up plaintiff's contributory negligence in bar of a recovery. None of these pleas proceeded on the untenable theory, in this jurisdiction, that would attribute to plaintiff contributory negligence on the part of the driver of the automobile in which plaintiff was at the time a passenger, thus excluding from authoritative influence the doctrine of Birmingham, etc., Ry. v. Carpenter, 194 Ala. 141, 144,69 So. 626, where it was well decided that a passenger who has no control, charge, or authority over the driver of the vehicle cannot be concluded in his action for damages for personal injuries by negligence of such independent driver of the vehicle. Hence the sufficiency of these several pleas, as against the demurrer addressed to them separately, must be tested by the law's measure of ascription of negligence to a passenger; the conduct or omission of the driver, in the circumstances averred, but affording the condition by which the passenger's (plaintiff's) duty, and its averred breach or breaches, is to be ascertained and, if it existed, the effect thereof upon plaintiff's right determined, to the end that it may be decided whether the plaintiff (not the driver) was approximately, contributorily negligent with respect to the injury declared on. The report of the appeal will reproduce special pleas 3 to 9, inclusive, along with the demurrers to pleas 2 to 9, inclusive.

Plea 2, the first of the series, would have predicated plaintiff's contributory negligence of her failure to look and listen for a street car approaching the point of intersection of the street over which the automobile was moving with the street over which the street car was moving; it being alleged that if the plaintiff had so looked or listened she would have discovered the street car in time to have reported its approach to the driver, whereupon "he would have slowed down or stopped in time to have averted the accident." The primary duty averred is that plaintiff, a passenger merely, should have looked and listened for the approaching car, which, being observed, would have so advised the plaintiff of its approach as that she could (must) have reported that fact to the driver, over whose operation she is not alleged to have had any authority or control. It is not inappropriate to note that neither in this plea nor in those numbered 3 to 9, inclusive, is it alleged that there was a joint enterprise, nor any relation of master and servant or principal and agent then existing between the driver of the automobile and the plaintiff, a passenger merely, nor that the driver was incompetent, intoxicated, or otherwise inefficient. Elyton Land Co. v. Mingea, 89 Ala. 521, 528, 529,7 So. 666; Birmingham, etc., Co. v. Baker, 132 Ala. 507,31 So. 618. Some of the stated alternative factors, absent from the pleas, were present in the case of McGeever v. O'Byrne,82 So. 508,¹ where the particular action was by the passenger (guest) against the driver of the automobile, thus, in some respects, distinguishing that decision from the case now under consideration. However, in the last-cited decision (McGeever v. O'Byrne), and in Birmingham So. Ry. Co. v. Harrison, 82 So. 534,² in response to rehearing therein, many decisions pertinent to this subject are noted, and some were approved and quoted.

It results, from principles recognized in the last-cited decisions, along with Mingea's Case, supra, Cent. of Ga. Ry. Co. v. Jones, 195 Ala. 378, 70 So. 729, and Huddy on Automobiles (5th Ed.) §§ 688, 689, 690, 694, that there rests upon even a mere guest, normal with respect to the senses, in a vehicle over whose operation or its operator (not shown to be incompetent for any reason) such guest has no right of control and toward whom the guest bears no relation of agency, the duty to observe ordinary care — the care an ordinarily prudent person, in like circumstances, would observe — in respect of dangers or perils known to such guest or suggested by attendant circumstances that would have advised a reasonably prudent person likewise situated that danger or peril was imminent or impending; but that there is no duty on such guest to anticipate that the independent driver of the vehicle in which such guest is riding will enter the sphere of danger or peril ahead, or will omit to exercise commensurate care to sense the approach or the probable approach of other agencies of transportation with reference to which the ordinarily prudent driver should, in due observance of his duty, govern the movement of the vehicle he controls. Where, however, such guest knows of the danger or peril into or toward which the vehicle is being driven, or the circumstances of realized speed of the vehicle and known location and its surroundings ahead are such as to suggest, to a reasonably prudent person likewise situated, the probability that a sphere of danger or peril may be created thereby or may be entered in course of the vehicle's movement, it is the duty of such guest to warn the driver in the premises and to protest a continuance of a movement so actually or probably fraught with danger or peril to such occupant of the vehicle. In other words, the duty imposed upon such person, whatever his seat in the vehicle, is created by either known dangers or perils that the attendant circumstances reasonably suggest or foreshadow. The duty is therefore not original with respect to the operation of the vehicle, but resultant, and that only from known and appreciated circumstances capable of bringing it into effect. Otherwise, the law would be held to sanction this irrational result: Such person would be allowed to close his senses to known dangers or to perils reasonably suggested by the attendant circumstances indicated, in blind reliance upon the unaided care of another, independent of such person's control though that other is, without assuming the consequences of the omission of such ordinary care as the attendant circumstances or known perils create. Shear. Red. on Neg. (6th Ed.) § 66a; McGeever v. O'Byrne, supra.

As said in many well-considered decisions on the subject, no fixed rule applicable to all cases can be formulated by which to determine when the duty stated arises, or what particular circumstances raise the duty, or what particular warning, protest, or action will suffice to manifest a discharge of the duty once it has arisen. The general serviceable rule justifying pronouncement of law upon facts and circumstances shown or requiring submission to the jury, as the case may be, is that reproduced in Birmingham So. Ry. v. Harrison, 82 So. 541,² among other of our cases, from Grand Trunk Ry. Co. v. Ives, 141 U.S. 417, 421, 422, 12 Sup. Ct. 679, 36 L. Ed. 485. The facts averred in a plea of contributory negligence must ordinarily invite a conclusion of law that the act or omission alleged characterized plaintiff's conduct or omission as negligence, or where the full allegation of the fact and circumstances in such plea are in themselves equivocal with respect to negligence vel non, the pleader must aver his conclusion that the act or omission charged was negligence. B. R., L. P. Co. v. Gonzalez, 183 Ala. 273, 278, 279,61 So. 80, Ann. Cas. 1916A, 543.

The application of the principles stated to plea 2 makes manifest its insufficiency. Without any efficient, invitatory averment of fact, it sought to predicate contributory negligence of an obligation on the part of the passenger (plaintiff) to maintain an outlook; whereas there was no such duty, in the absence of special circumstances relating to the driver's competency or known disregard of his duty in that connection that would serve to impose the duty to maintain an outlook. Jones' Case, supra. We say this much of plea 2, and the same observations may be made of pleas 7 and 8, without intending to affirm that the demurrers took appropriate note of the deficiency of these pleas (3, 7, and 8). Code, § 5340. Pleas 3, 4, 5, and 6 each attached importance to and made material an averment that plaintiff "well might" have "required" the driver to heed present or impending danger and to govern the operation of the car accordingly. This feature of these pleas made it necessary, if plaintiff was to be concluded by the omission charged therein, to aver also the right, power, or authority in the passenger to control the driver in the premises. The allegation that the plaintiff "well might have" required the driver to take account of the dangers averred was not the affirmation that the plaintiff had power or authority so to do. "Might" is a term not at all affirmative (Shelton v. Hacelip, 167 Ala. 217, 221, 51 So. 937) in the connection here used, particularly on hearing on demurrer. The demurrers took this specific objection to these pleas, and the court properly sustained them.

Plea 9 proceeds upon a theory consistent with the principles we state ante in defining, generally, the bases for the imputation of contributory negligence to a passenger (not as from or through the driver) who has no relation to or control over a driver not averred to be incompetent at the time. This plea was defective in respect of appropriate allegation of knowledge on the part of the plaintiff of the "high rate of speed" and of the place (thoroughfares) and its surroundings traversed by the automobile, under the circumstances alleged, with the effect of invoking the law's imposition of the stated duty on the part of the passenger (plaintiff). It should be observed, however, that knowledge of the elements of a dangerous situation is not always the equivalent of knowledge or appreciation of a particular peril. The allusion in this plea (9) to the city ordinance contributed nothing to the force or effect of the plea, its theory and pith being that the plaintiff was derelict in her duty in the premises — a duty the circumstances averred (defectively alleged therein) called into being, and to the discharge of which the plea avers the plaintiff took no steps to secure the reduction in the speed of this automobile. The plea was further defective in failing to measure plaintiff's asserted breach of duty by the law's standard of what a reasonably prudent person would or could have done in the circumstances toward the discharge of the duty the particular circumstances imposed upon the plaintiff. The demurrer to plea 9 specified none of these objections to the plea. Our statute requires specification of defects. Code, § 5340. The consideration on demurrer to a plea susceptible of healing amendment is restricted to grounds assigned within the rule of the cited statute. The ground of demurrer that negligence asserted was averred as a conclusion of the pleader was ill founded. This plea's sufficiency was not dependent upon plaintiff's power or control over the driver, the defense sought to be set up being referable to plaintiff's inaction under circumstances, conditions, created by the independent driver. This plea expressly avers that plaintiff's therein pleaded negligence was the proximate cause of her injury. Whether that result is established when the evidence is adduced is a question not presented on this appeal.

For the error committed in sustaining the demurrer to plea 9, the judgment is reversed and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

¹ Ante, p. 266.

² Ante, p. 284.

On Rehearing.