Karpeles v. City Ice Delivery Co.

SAYRE, J.—

(1-4) Appellee’s objections to some expressions in the deposition of the witness Fletcher, made for the first time when the deposition was offered in evidence, were sustained in the court below, and these several rulings are assigned for error. The deposition had been taken on oral interrogatories. Attorneys for appellee, defendant below, had refused to take part in the examination, and at the trial objected to the deposition as a whole, on the ground that the commission had been issued in' a case not authorized by statute; but we doubt that this objection was tenable, and shall pass it by without comment, our opinion being that the rulings against specific parts of the deposition were free from reversible error — this, so far as concerns the nature of the facts sought to be proved by the several excerpts objected to, the mere conclusions of the witness going to the *455 merits of the very issue to be tried by the jury, on the authority of Alabama City, G. & A. Ry. Co. v. Healcl, 178 Ala. 636 , 59 South. 461 , and cases there cited. The objections to these parts of the depositions were not unduly delayed within the rule of Forehand v. White Sewing Machine Co., 195 Ala. 208 , 70 South. 147 . Their incompetency and illegality, with one exception, were apparent upon their face; and the practice is well settled that such evidence may be excluded at any stage of the trial. —Whildren v. M. & P. Nat. Bank, 64 Ala. 1 , 38 Am. Rep. 1 . The statement of the witness that he was a Confederate veteran was wholly irreler vant and immaterial. No error can be visited upon the trial court for its exclusion.

(5) The naked legal propositions of charges F. L, and P, given at the request of defendant, were correct. Translated in the light of the case presented by the evidence, these charges meant simply that no rule of due care required the driver of defendant’s automobile to regulate his own conduct in turning from one street into another with reference to the possibility that motorcycles would be driven across his path at such a rate of speed as to be unable to prevent striking vehicles crossing the intersection or in violation of the municipal ordinance which prohibited any person to drive any motor vehicle on or across any intersection of two or more public streets at a greater rate of speed than 8 miles an hour. It is true, of course, that this principle could be of no service to defendant if as matter of fact its agent in charge of the automobile drove it from one street into the other in violation of the ordinance requiring that “any vehicle, on turning into another street to the left, shall keep to the right of the center of the intersection,” otherwise negligently, and if, further, such negligence was a proximate cause of the death of plaintiff’s intestate. Defendant’s contention was that its agent had not violated the ordinance as fairly construed with reference to the situation at the place where the accident occurred, nor had he been guilty of negligence of any sort, and, further, that if there was a technical violation of the ordinance, that dereliction on the part of its agent was not a proximate cause of intestate’s death, but that his death was to be attributed properly to the great speed at which the motorcycle was driven as its sole proximate cause; and these contentions had substantial support in the evidence, that is, the evidence for defendant went to show that its automobile, after moving south along Twenty-First street as prescribed by ordinance, turned prudently and at *456 lawful speed to the left towards Avenue E; that on Avenue E between Twenty-First and Twenty-Second, the next street to the east, the Belt Line Railroad maintained and used two lines of track; that the south or team track was used for the delivery of freight from cars to wagons and drays which stood while receiving it in that part of the avenue between the south track and the adjacent curb, thereby frequently, or almost constantly as some of the witnesses stated the case, destroying the convenient or even possible use of the south side of the avenue by vehicles passing through between the intersecting streets, so that, in practical effect, the north side constituted the way for vehicles passing through in both directions and was customarily so used; that one or two freight cars were standing on the south or team track at the time; that defendant’s automobile was on or between the tracks, probably astride the north rail of the south track, and close to the line of the east curb of Twenty-First street as projected across Avenue E, when it was struck broadside by two motorcycles moving at great and unlawful speed from the south. Plaintiff’s intestate was riding tandem on one of the motorcycles —that is, he was on a seat behind the driver. By the impact both intestate and the driver with him were thrown over the raised top of the automobile into the street beyond, whereby plaintiff’s intestate was instantly killed.

(6, 7) The charges under consideration took no account of the tendencies of the evidence for defendant to which we have referred or the countervailing testimony for plaintiff. They were not designed .to deal so comprehensively with the facts of the case, nor, for that matter, did they deal with any facts at all except the one, to which they did not refer otherwise than by an inferred hypothesis, that the drivers of the motorcycles may have crossed the intersections of the streets at an unlawful and negligent rate of speed. These charges assumed nothing as to the facts; nor did they purpose to make the result of the case turn upon the legal proposition which they stated. They left room for the operation of correlated principles of law, which were of necessary consideration, and were, we must presume, elsewhere sufficiently stated by the court to the jury. They stated presumptions on which defendant’s agent was entitled to act, correct propositions of law, as we have said, and if plaintiff apprehended a tendency to mislead by reason of the absence of correlated propositions, the rule is well settled that such tendency should have been met by a request for an explanatory charge *457 (2 Mayf. Dig. p. 573, § 214), and that causes shall not be reversed for the giving of charges merely having a tendency to mislead unless it is manifest upon the record that the jury has been,in fact misled to the prejudice of appellant. —Goldsmith v. McCafferty, 101 Ala. 663 , 15 South. 244 .

(8-13) Referring to the above-stated tendencies of the evidence, we are not of opinion that a reasonable construction of the ordinance, providing that vehicles when turning to the left from one street into another should keep to the right of the center of the intersection, when viewed in connection with the peculiar situation presented by the customary use of Avenue E, required of defendant’s automobile that it should do more than keep to the right of' the center of the intersection of the two currents of travel as defined and determined for practical purposes by the customary and almost constant use of Avenue E — a manner of use imposed upon it by the presence of the railroad tracks and the customary use to which they were given. It cannot be assumed, in the absence of evidence on the point, that the customary use of Avenue E by the railroad company and persons receiving freight from its cars was unlawful. Ordinances are to be construed according to common sense and so as to give effect to the purpose of their adoption. The evident purpose of that part of the ordinance requiring vehicles to turn to the right of the intersections of streets, like its complementary provision requiring all vehicles, except when passing a vehicle, to “keep reasonably near the right-hand curb,” is to keep vehicles turning to the left from one street into another moving at all times, as far as practicable, with the current of- travel. In the circumstances here shown by the tendencies of defendant’s evidence, assuming, as the jury were authorized to find, that the automobile passed at a lawful rate of speed to the left of the center of the intersection of the streets as laid off, but to the right of the intersection of the streets as defined by their customary use, it cannot be said that the driver of defendant’s automobile by his course did not better serve the purpose of the ordinance and the rule of due care prescribed by it. Ordinary prudence required him to take account of the customary use of the avenue between Twenty-First and Twenty-Second streets. Accurately enough for practical purposes it may be said on the evidence in this case that Avenue E between the two streets was divided into three zones: The north given over to vehicles passing from one street to the other; the middle to the railroad; the *458 south to wagons and drays passing to and from cars and stopping to receive freight. Motion is the general law of the road, but this law, like the rule of the ordinance, is subject to limitations imposed by reason and necessity. The driver of a vehicle may leave the prescribed route to avoid an obstacle otherwise unavoidable, and within reason he may stop and stand. By parity of the reason, we think, if the south side of Avenue E had by custom and constant use been so given over to the unloading and hauling of freight from cars that stood therein as to close that part of it to ordinary traffic, substantially as hypothesized in charge R, the driver of defendant’s automobile was not chargeable with negligence per se in yielding to the custom which directed his movement to that part of the avenue north of the railroad tracks. Assuming the presence of cars upon the team track of the railroad and the customary and almost constant use of the avenue as defendant’s evidence tended to show, and the general effect of these facts to close the south side to ordinary traffic granted according to the hypothesis of the charge, defendant’s right and duty in the premises were not affected by the fact that at the moment there may have been no drays or wagons on the south side of the avenue. In view of the conditions generally prevailing and the custom which grew out of them, as we may assume, it would seem reasonable to say that the turning of the automobile across the intersection in the manner approved by the charge was not in violation of the spirit and purpose of the ordinance which sought to avoid confusion and its attendant danger and inconvenience by so providing that vehicles would, as far as practicable, move along uniform and generally understood lines of travel. We hold, therefore, that there was no error in giving charge R as requested by defendant. Appellant devotes much of his argument to criticising the charge as assuming facts that should have been left to the jury. As we read the charge, the application of its proposition of law is left to depend upon the jury’s belief from the evidence that the facts existed, that is, upon a finding of the facts, of which the charge predicates a certain legal consequence. It may be conceded that the charge is capable, on microscopic examination, of a possible construction that would make it appear to assume that defendant’s automobile did pass the center of the streets as defined by ordinary traffic to the left, that is, as provided by the reasonable construction of the ordinance; but that is by no means its most obvious construction, and there appears upon the record no rea *459 son for apprehending -that the jury did so construe it. In other words, if the charge was defective at all, it was defective merely because capable of misleading tendency.

(14, 15) A number of the charges, given for defendant and assigned for error by plaintiff, asserted in substance that, if the speed of the motorcycle upon which plaintiff’s intestate was riding, or the negligent operation of the motorcycle, was the sole proximate cause of the death of plaintiff’s intestate, or if the alleged violation of the ordinance by defendant’s agent did not contribute directly to his death, then defendant was not liable. If defendant’s agent exercised due care, then of course the death of plaintiff’s intestate must be referred to the negligence of the driver of the motorcycle, or, in the absence of that, to inevitable accident. Possibly and very reasonably the jury may have found that, even if defendant’s automobile did not observe the literal mandate of the ordinance in turning from one street into the other, its divergence from the proper course, even though determined by reference to the intersection of the streets as laid off, was so slight that the result would not have been different had it followed its technically proper course. Plaintiff’s intestate was moving along Twenty-First street, and was concerned about the use of that street only. He had no interest in the use of Avenue E between Twenty-First and Twenty-Second streets except as that use affected the momentary location on Twenty-First street of vehicles turning to the left from the street into the avenue immediately before leaving the street. In the peculiar circumstances of this case, it appearing beyond question that the motorcycle ran into the side of the automobile, the question, so far as plaintiff’s intestate in his situation was concerned, is, not so much whether the automobile turned the center of the intersection correctly, but whether its manner of turning made any difference in the result. It would be unreasonable to hold defendant answerable for the consequence of the motorcycle running into the automobile on the ground that the latter violated the ordinance by cutting a few inches, or even feet, across the imaginary corner of prohibited territory if for all practical purposes it would have been in the same place and the same result would have followed had it observed the letter of the ordinance by barely shaving the corner. But without regard to the possibility of such finding, the charges were correct, for the jury may have found that defendant’s driver was not at fault in any respect. It scarcely needs to be said that we have not overlooked *460 the fact that plaintiff’s intestate was, as the witnesses put it, a “guest” upon the motorcycle, not directing or controlling its operation, and hence .not chargeable with the driver’s contributory negligence. In either of the cases we have pointed out as of possible finding under the evidence, the operation of the motorcycle, whether negligent or not, must be held to have been the sole proximate cause of the accident. —Birmingham Railway Co. v. Ely, 183 Ala. 382 , 62 South. 816 . For these reasons we hold that there was no error in giving the charges J, N, K, 17, G, M, 2, and H, to which we refer in the order of their presentation by the record and the arguments of counsel.

(16) We are satisfied with the statement of the rule of due care in the operation of automobiles laid down by the trial court in charges C and D. Plaintiff would have had the court apply the rule which, for the conservation of human life, exacts of railroad companies the highest degree of skill and diligence known to skillful and diligent persons engaged in that business. That rule is derived from consideration of the great speed with which the public demands that railroad trains shall be operated, the overwhelming momentum they acquire in motion, and the peculiar skill necessary in their operation. As for automobiles, nowadays no form of vehicle is so common on much frequented highways. They are driven by everybody and go everywhere. They are not dangerous per se. Some training is required for their operation, but that is a simple matter and easily acquired. The danger from them arises from the temptation to speed they seem constantly to present. Driven with the ordinary prudence of a careful person they are as safe as any form of conveyance. Ordinary, reasonable prudence in every case requires that care and watchfulness should be commensurate with the danger to be apprehended from the surroundings at the particular time. Such we think is the rule that should be applied to the drivers of automobiles. It is the rule laid down in charges C and D, and our opinion is that they were not erroneously given .—May bank v. Reaves, 193 Ala. 614 , 69 South. 137 .

(17, 18) This action is brought under the “Homicide Act,” § 2486, of the Code. Damages under this statute are punitive, to prevent homicide; by measure they are such as the jury deem just under all the circumstances. Perhaps it is of no importance now whether charges 1 and 8 were properly given, since they affected only the measure of recoverable damages, and the jury have decided that none were recoverable, presumptively on the *461 ground that defendant’s agent was guilty of no negligence, or, if guilty, that his negligence did not contribute proximately to the death of plaintiff’s intestate. However, since damages, in the event of a recovery, were to be assessed for punishment only, and just punishment could only be assessed with a view to all the conditions surrounding and affecting the act of defendant’s agent at the time, we see no reason why the conduct of-the drivers of the motorcycles, who were driving in concert, should not be taken into consideration in determining the degree and character of the offense, if any, proved against the driver of the automobile, and its appropriate punishment. This conclusion does not involve the imputation of the negligence of his driver to plaintiff’s intestate as a means of defeating recovery, but would properly allow the jury, in the event of a finding for plaintiff, to visit upon defendant only such measure of punishment as the moral quality of the act of its agent might seem to demand. This is the just and reasonable meaning of the statute as it has been heretofore interpreted in this court. —Randle v. Birmingham Railway Co., 169 Ala. 314 , 53 South. 918 .

(19, 20) Charge 6 states a correct proposition of law and common sense. The jury certainly had a right to consider the conflict between the testimony of any witness and the “physical facts” in determining what weight they would give to the testimony of the witness. If the instruction was not ideally perfect in that it omitted to say that the conflict hypothesized should be considered in connection with all the other testimony in the cause, and if for that omission the instruction might have been refused without error, still the omission rendered the instruction at worst merely misleading or argumentative, and called for correction by an explanatory charge, rather than by a reversal on appeal.

(21) Charge 9 was clearly correct. There was no evidence to connect the Birmingham Ice Factory with the operation of the automobile. The driver was the agent of the alleged joint tort-feasor, the City Ice Delivery Company, and was not shown to have had any connection with the Birmingham Ice Factory, a different corporation.

The case as against the City Ice Delivery Company was one for jury decision, and, no error having affected the manner of its trial by the court, there was no error in overruling the motion for a new trial.

*462 Finding no reversible error, the judgment is affirmed. Affirmed.

Anderson, C. J., and McClellan and Gardner, JJ., concur.