Patrick v. Mitchell , 242 Ala. 414 ( 1942 )

In the original consideration of this case the writer, parenthetically though erroneously, stated the population of Section, Alabama, which we now strike from the opinion. The figures were obtained from the Bureau of Census of 1930. But the examination was superficial, for which due apology is tendered. The population, we now find, upon more careful scrutiny, had reference to precinct Section. Of course all of this should have been more carefully observed in the first instance and perhaps the mistake may properly be designated as inexcusable. But counsel for defendants attach entirely too much importance to the writer's error in this regard. They insist that Section is a village, though defendant Bradford, in giving the location of the accident, says: "I was about the center of town". Italics supplied.

But whether Section may be denominated village or town (and the record is silent upon that matter) is not of controlling importance here. The important facts are that Section did have business houses and parked cars on the side of the street and quite a crowd of people on this Saturday afternoon, with children playing on each side of the street.

We quote some excerpts from the testimony that impressed us in our study of the record. Witness Stringer: "I was in Section one Saturday afternoon * * * there was quite a few cars parked in front of the stores and several people around the stores and several children playing around and some running across the road and I started in one of the stores * * * I heard a woman scream and I looked around and I turned my head I saw two boys, one running the other; the log truck was coming up the road and as I saw it the boy ran into the truck; that is the Mitchell boy ran into the truck".

Witness Spurgeon, who was riding with Bradford on the truck, says: "There was a crowd of people on both sides of the street". And in the testimony of Curley Stringer is the following: "there were lots of people there and cars parked in every angle * * * I possibly had seen the children playing around the cars that were parked there as there was a bunch of children there". Witness Patterson says: "When I first saw the little boy he came running by me and another boy running him. They were running on the sidewalk then and he made a turn to his left just as he passed me and ran toward the street".

In the original opinion we took the pains to quote what we considered enough from the testimony of defendant Bradford, the truck driver, to demonstrate that in fact he was well aware of the situation, the parked cars and the children running out from behind them, and that these children were "on both sides of the road". And we noted the testimony of the child's father to the effect Bradford admitted a probability the accident could have been avoided had he "blown his horn". Bradford further testified: "Mrs. Mitchell she asked me did I blow the horn and I told her that I didn't see anything to blow at and saw no danger in the road ahead of me".

In Cedar Creek Store Co. v. Stedham, 187 Ala. 622,65 So. 984, 985, the court calls attention to the well-known lack of discretion of children of this age and that they "may heedlessly play in the highways and may heedlessly go across them without exercising such ordinary prudence". And in Reaves v. Maybank, 193 Ala. 614, 69 So. 137, 138, a suit to recover for the death of a child by the alleged negligent operation of an automobile, the discussion of defendant's given charge "1 1/2" discloses that the court considered the matter of warning signal by blowing the horn a "material matter" in the case. As observed in that case what constitutes reasonable care "must vary with and must depend upon the circumstances of the particular case".

In Watson v. Ingalls, 218 Ala. 537, 119 So. 667, the matter of signal warning was under the circumstances considered important and the case was cited to that end. But we were of course well aware the particular facts differed from those in the instant case. Other illustrative cases may be found in Klink v. Bany, 207 Iowa 1241, 224 N.W. 540, 65 A.L.R. 187, 199; 67 A.L.R. 101; 5 Amer.Jur. 877-880.

But we forego further discussion, and have responded at some length out of regard for the earnest argument of counsel, though we are yet quite persuaded of the correctness of the former opinion that a jury question was presented and the affirmative charge properly refused to defendants.

The application will be denied.

Application overruled.

THOMAS, BROWN and FOSTER, JJ., concur.