Alabama Power Co. v. Pentecost , 210 Ala. 167 ( 1923 )

The plaintiff was injured while the guest of one Thornton, whose automobile was being driven by him when it collided with the defendant's street car. The place of the collision was upon a street in the city of Gadsden, in which the rails of the defendant's track were so imbedded therein that said track was but a part of the street, and it was the duty of those in charge of said street car to keep a constant lookout for those using the street, whether frequently used or not. Sheffield Co. v. Harris, 183 Ala. 363, 61 So. 88. The fact that the use of the street was frequent or infrequent might be a factor in a charge of wantonness, but is not material as to the legally imposed duty of keeping a lookout. The trial court did not err as to exception No. 1 to the oral charge.

There was no error in the second exception to the oral charge, to wit:

"The negligence of the driver of the automobile, over whom the plaintiff had no control, would not be and could not be imputed to the plaintiff, thereby defeating his recovery."

This is the law, and the undisputed evidence showed that plaintiff was the guest of the driver and had no control over him. Cen. of Ga. v. Jones, 195 Ala. 378, 70 So. 729, and cases there cited.

There was no error in refusing the defendant's requested charge 3. If not otherwise faulty, it in effect required the plaintiff to keep a lookout when it was not his duty to do so. Jones Case, supra. As brought out in said Jones Case and the case of Johnson v. Louisville N. R. Co., 203 Ala. 86,82 So. 100, if the plaintiff knew of the approach of the car and failed to warn the driver, or to escape, he might be guilty of negligence; but these cases do not impute to him the negligence of the driver as to looking and listening.

The exceptions to the rulings upon the evidence are without merit, and the criticism of same is hypercritical.

The judgment of the circuit court is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur.