Opinion
6 Div. 148.
May 15, 1945. Rehearing Denied June 26, 1945.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Action by Ernest Earl Allred and another, minors, by their next friend, Mrs. Ebie Allred, against the Sloss-Sheffield Steel Iron Company, for damages to an automobile as the result of a collision with defendant's truck. Judgment for plaintiffs, and defendant appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in Sloss-Sheffield Steel Iron Co. v. Allred, 247 Ala. 499, 25 So.2d 179.
The following charges were refused to defendant:
"B. I charge you gentlemen of the jury, that 'traffic control signal' is defined by the code of the City of Birmingham and by the laws and ordinances of the City of Birmingham as follows: 'Any devise using colored lights and bells or colored lights and words or any combination thereof whether manually, electrically or mechanically operated, by which traffic is alternately directed to stop and to proceed.'
"D. I charge you, gentlemen of the jury, that it is the duty of drivers of vehicles in the City of Birmingham to obey 'stop' and 'Go' signals of the overhead traffic lights governing traffic and in use in the City of Birmingham, but that in emergencies and under certain circumstances police officers may order the drivers of vehicles to disregard the signal of the signalling device.
"11. I charge you, gentlemen of the jury, that Sec. 5929 of the Code of the City of Birmingham provides as follows: 'Traffic control signals. (a) The meaning of lights and gong connected with traffic control signal system shall be as follows, to-wit, Green light means "Safety and Go", red light means "Danger and Stop"; amber light and gong, one or both means "Caution and clear intersection." '
"9. I charge you, gentlemen of the jury, that the ordinance in force in the City of Birmingham which provides that it shall be unlawful for any person to drive any vehicle across or through any procession, except upon signal from a police officer does not give the driver of an automobile in a procession the right to disregard the stop and go signals of the traffic light.
"L. I charge you, gentlemen of the jury, as a matter of law that cars being operated in a procession must be operated in accordance with law and that the drivers thereof do not have a right to disregard the warnings and signals of police officers or to disregard 'stop' and 'go' signal devices installed by the City of Birmingham regulating traffic, unless ordered to do so by a police officer in charge of traffic and directing the traffic.
"G. I charge you, Gentlemen of the Jury, that the driver of a vehicle in the City of Birmingham, whether he be driving or operating his car in a procession or otherwise has no right to drive his car into an intersection of streets, where the traffic is being controlled by a traffic signalling device, which is in operation, against the red light displayed from the direction in which he is proceeding and facing him at the time he entered the intersection, unless at the time and on the occasion a police officer is directing traffic at said intersection and by word, sign or signal authorizes him to disregard the directions of the said traffic signalling device.
"8. I charge you, gentlemen of the jury, that the ordinances of the City of Birmingham and the municipal laws of the City of Birmingham in force at the time of the accident involved in this case did not give to the driver of a vehicle in a procession the right to proceed into an intersection of streets, where traffic at the intersection was governed by a traffic light in operation on a red light, that is, when the light was showing red in the direction in which he was proceeding into the intersection, unless the traffic at said intersection at said time and place was being controlled by a police officer.
"F. I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence that the driver of the vehicle owned by plaintiffs entered the intersection and proceeded into the intersection, where the collision of their car with the truck of the defendant occurred, when the red light on the traffic signal governing traffic at said intersection was displayed against the path or direction of his travel, I then charge you that the driver of the car owned by plaintiffs was guilty of negligence as a matter of law, and I further charge you that if you are reasonably satisfied from the evidence that this negligence on the part of the driver of the car owned by the plaintiffs was the sole proximate cause of the collision and damage to the plaintiffs' car and that the driver of the defendant's truck was not guilty of negligence which proximately contributed to the collision, I then charge you that you cannot find a verdict in favor of plaintiffs and against the defendant.
"A. I charge you, gentlemen of the jury, that Section 5882 of the Code of the City of Birmingham, provides as follows, 'It shall be unlawful for the operator of a vehicle or for the motorman of any street car to disobey the instruction of any official traffic sign or signal upon the street, placed in accordance with the provisions of the traffic laws and ordinances of the City of Birmingham, unless otherwise directed by a police officer.' And I charge you that if you are reasonably satisfied from the evidence that the collision of defendant's. truck with the automobile owned by the plaintiffs occurred at an intersection of streets in the city of Birmingham, and that at the time of said accident and prior thereto there was a traffic light at said intersection duly installed by the City of Birmingham controlling traffic by stop and go signals, namely, by green and red lights, that said signal device was in operation, I then charge you that it was the duty of the driver of the plaintiffs' car and the driver of the defendant's truck to obey said signal device unless ordered otherwise by a policeman or traffic officer of the City of Birmingham.
"7. I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence that the defendant's truck entered and proceeded into the intersection where the collision in this case occurred on the 'go' or green light, and that the car owned by plaintiffs entered said intersection and was proceeding in the intersection on the red light at the time it collided with the defendant's truck, that is, the defendant's truck proceeded into the intersection on the 'go' sign in the direction in which he was traveling and entering said intersection, and the car of the plaintiffs proceeded into the intersection against the 'stop' signal in the direction in which said car was traveling, I then charge you that the car owned by the plaintiffs entered the intersection in violation of the laws of the City of Birmingham regulating traffic, and I further charge you that if you are reasonably satisfied from the evidence that the collision and damage to plaintiffs' car was proximately caused by said negligence of the driver of the plaintiffs' car, and that the driver of the defendant's truck was not guilty of any negligence, I then charge you that you cannot find a verdict in favor of plaintiffs and against defendant."
London Yancey, Chas. W. Greer, and Geo. W. Yancey, all of Birmingham, for appellant.
Ordinances in pari materia must be construed together and if possible be interpreted so as to constitute a harmonious legal system. Bates v. State, 24 Ala. App. 507, 137 So. 465; Id., 223 Ala. 527, 137 So. 465; Mobile v. Smith, 223 Ala. 480, 136 So. 851; Marengo County v. Wilcox County, 215 Ala. 640, 112 So. 243; Tucker v. McLendon, 210 Ala. 562, 98 So. 797; Birmingham v. So. Ex. Co., 164 Ala. 529, 51 So. 159. Where special statute deals particularly with a part of subject matter embraced within a general statute, the special statute will ordinarily be regarded as an exception to the general statute to the extent the latter is in apparent conflict with the former. City Code of Birmingham, §§ 5920, 5929(a), (b), (c), (d); Pepper v. Horn, 197 Ala. 395, 73 So. 46; City Council v. National B. L. Ass'n, 108 Ala. 336, 18 So. 816; Ivey v. Railway Fuel Co., 218 Ala. 407, 118 So. 583; Dunn Const. Co. v. Craig, 191 Miss. 682, 2 So.2d 166; People v. Vanderpool, Cal.App., 114 P.2d 608; Kenney v. Hoerr, 324 Mo. 368, 23 S.W.2d 96; Bell v. Pickett, 178 Minn. 540, 227 N.W. 854. Where statute enumerates the persons excluded from its operation, it impliedly includes all others not enumerated. Birmingham v. Brown, 241 Ala. 203, 2 So.2d 305. Courts cannot add to or subtract from statutes by judicial legislation. So. Industrial Inst. v. Lee, 234 Ala. 404, 175 So. 365; State v. Tuscaloosa B. L. Ass'n, 230 Ala. 476, 161 So. 530, 99 A.L.R. 1019; 59 C.J. 1403. Members of funeral processions must obey rules of the road. Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396; Shields v. State, 187 Wis. 448, 204 N.W. 486, 40 A.L.R. 945; White v. State, 99 Ga. 16, 26 S.E. 742, 37 L.R.A. 642. Traveler on highway has right to assume without facts warning to contrary, that other persons using highway will do so in lawful manner. Tindell v. Guy, 243 Ala. 535, 10 So.2d 862; Holman v. Brady, 241 Ala. 487, 3 So.2d 30; Morrison v. Clark, 196 Ala. 670, 72 So. 305; Adler v. Martin, 179 Ala. 97, 59 So. 597. Violation of municipal ordinance governing traffic regulations is negligence per se. Harris v. Blythe, 222 Ala. 48, 130 So. 548; Ford v. Hankins, 209 Ala. 202, 96 So. 349. Requested written instructions setting out in substance or in haec verba, applicable city ordinances should be given to the jury. Wise v. Schneider, 205 Ala. 537, 88 So. 662. There is no State law regulating funeral or other type of processions; the legislature has given power to local authorities to regulate traffic within cities. Code 1940, Tit. 36, § 32(d). Defendant's written instructions which in effect require consideration by jury of third person's negligence (driver of plaintiffs' car) are properly refused where issues embraced wanton conduct on part of defendant's driver. Renfroe v. Collins Co., 201 Ala. 489, 78 So. 395; Grauer v. Ala. G. S. R. Co., 209 Ala. 568, 96 So. 915; Boyette v. Bradley, 211 Ala. 370, 100 So. 647; Lindsey v. Kindt, 221 Ala. 190, 128 So. 139; Alabama By-Prod. Corporation v. Rutherford, 239 Ala. 413, 195 So. 210; Seitz v. Heep, 243 Ala. 372, 10 So.2d 148. It is error to instruct jury that violation of city ordinance (mere traffic regulation) is negligence as matter of law, where evidence warranted submission on issue of wanton conduct. Renfroe v. Collins, supra; Ivy v. Marx, 205 Ala. 60, 87 So. 813, 14 A.L.R. 1173; Cooper v. Agee, 222 Ala. 334, 132 So. 173; Birmingham v. Blood, 228 Ala. 218, 153 So. 430; Alabama By-Prod. Co. v. Rutherford, supra; Seitz v. Heep, supra. Refusal of sole proximate cause charge is proper where issues embrace subsequent negligence or wanton conduct. Authorities, supra. Traffic signal lights do not relieve driver of vehicle of general duty to operate vehicle with careful and prudent regard for safety of others. Duke v. Gaines, 224 Ala. 519, 140 So. 600. The exception to the oral charge is insufficient to avail appellant, if it be in any wise considered prejudicial. B. R. L. P. Co. v. Cockrum, 179 Ala. 372, 60 So. 304.
Clifford Emond, of Birmingham, for appellees.
This was a suit, resulting in a verdict by the jury, and judgment rendered thereon, in favor of appellees, plaintiffs, for $300 damages done to their automobile in a collision between it and a truck belonging to appellant, and driven at the time by one of its agents or servants while acting within the line and scope of his employment.
The complaint was in two counts; the first being, essentially, in words and figures as follows, viz.:
"Plaintiffs claim of the defendant the sum of Three Hundred Dollars ($300.00) as damages for that, heretofore on to-wit, the 3rd day of November, 1943, an automobile belonging to the plaintiffs was being driven along and upon a public highway in the City of Birmingham, Jefferson County, Alabama, to-wit, 10th Avenue North at the intersection of Coosa Street, and at said time and place an agent, servant, or employee of the defendant, while acting within the line and scope of his employment as such, ran a motor vehicle into, upon or against the automobile of the plaintiffs and as proximate result thereof plaintiffs' said automobile was injured and damaged as follows: (Here follows catalogue of damages).
"And plaintiffs aver that all of the said injuries and damages to their automobile aforesaid and the resultant loss of the value of said automobile to the plaintiffs was proximately caused by the negligence of the agent, servant or employee of the defendant while acting within the line and scope of his employment as such in and about the operation and control of the motor vehicle driven by him at the time and place aforesaid."
The second count of the complaint submitted to the jury is in exactly the words and figures of the first, except that there is substituted for the last paragraph thereof the following, viz.: "And plaintiffs aver the said agent, servant or employee of the defendant, while acting within line and scope of his employment as such, wantonly injured and damaged the automobile belonging to plaintiffs by wantonly running the said motor vehicle driven by him at said time and place into, upon or against plaintiffs' said automobile."
The only plea was the general issue.
It being understood that the first of the two counts we have quoted was denominated "B.", and the second, "C.", we here set out, as being in all things correct and informative, the following portion of the trial court's oral charge to the jury, viz.: "And count B is drawn on what is known as simple negligence, and count C is that of wantonness. The pleading is the general issue, that is to say, they (appellant — defendant — we interpolate deny the material averments of each count B and C, and there is no question of subsequent or contributory negligence involved since it was not pleaded here. The general issue denies the allegations of each count, B and C, and that means to say it requires proof, and when I use that expression in a civil suit, I mean to reasonably satisfy your minds, from the evidence, of the truth of the material allegations, of B or C, proven to your reasonable satisfaction, as the case may be."
Appellees' evidence was to the effect that their car, loaned to and driven by the father of Ernest Earl Allred, was in a funeral procession travelling east on 10th Avenue, North, in the City of Birmingham. And that their car was in the act of crossing Coosa Street — which runs north and south and intersects 10th Avenue, North — and after it was already into and crossing the said intersection — appellant's cement mixing truck was driven by one of its employes, engaged in the line and scope of his employment, North on Coosa Street and into the said intersection with 10th Avenue, North, at the rate of speed of 35 or 40 miles an hour, and into or against or upon the side of the car belonging to appellees — completely destroyed it, or at least rendering it practically worthless (at any rate, no question is here presented as to the excessiveness vel non of the damages awarded by the jury). Further, that at the time their car was struck by appellant's truck, said car was a little more than half across the intersection; and that appellant's truck did not slow up or slacken its speed before and until the impact.
The evidence on behalf of appellant was, essentially, that its truck entered the intersection referred to at a speed of only about 10 or 12 miles an hour, and that the car belonging to appellees was driven directly in front of same, under circumstances and conditions that rendered it impossible for appellant's said truck driver to avoid the collision.
It will thus have appeared that a question for the jury was presented by the conflicting evidence.
As appellant's counsel remark: "There was thus squarely presented a situation where the plaintiff (appellees), — as represented by the driver of their car, we interpolate — a member of a procession, and the defendant (appellant), an ordinary traveller, the one going East and the other going North, approached a street intersection controlled by a traffic light at approximately the same time, a collision resulting."
Before we go further, we might observe that if the evidence on behalf of appellees — as we have noted hereinabove — should be believed in the required way by the jury, it would have been, and would be, their duty to return a verdict in favor of the appellees — regardless of any observations we may hereinafter make. Duke v. Gaines, 224 Ala. 519, 140 So. 600. Because we think the law is as set forth in the third and fourth headnotes to the report of the case of Duke v. Gaines, supra, in 224 Ala. 519, 140 So. 600, viz.: "3. Automobile driver may not, ordinarily, assume that intersection is clear, simply because of appearance of green traffic signal light." And "4. Traffic signal lights do not relieve autoists of general duty to operate automobiles with careful and prudent regard for safety of others."
While, as noted above, there was no plea of contributory negligence in the case, yet appellant claimed, through its testimony, that it was guilty of no negligence at all, and that whatever damage appellees suffered was the direct, proximate, result of their own agent — to so denominate the man who had borrowed and was driving their car — in failing or refusing to obey the law governing the situation surrounding the collision between their car and appellant's truck.
Without being more specific we are of the opinion that the conflicting testimony was, on each side, of sufficient weight to sustain the respective theories of liability, vel non, of the parties — appellant (defendant) and appellees (plaintiffs). The situation posed a question for the jury.
As appellant's counsel put it: "The defendant (appellant) took the position that because of Section 5929 (a) (b) (c) and (d) of the City Code of Birmingham of 1930, it was the duty of the plaintiff (appellees) to stop in obedience to the red light shining in his direction. Plaintiff (appellees) contended that by virtue of Section 5920 of the same Code, the defendant could not pass through the procession, that it was therefore the defendant's duty to stop even on the green light while the plaintiff was privileged to go through on the red light." (And maybe we ought to make clear, before we go further, that the undisputed evidence was to the effect that plaintiff's (appellee's) car entered the intersection where the collision occurred on a "red light" as same is described in Section 5929 of the City Code of Birmingham of 1930; while defendant's (appellant's) truck entered said intersection on a "green light," as described in the same section).
As appellant's counsel go on to say: "The defendant took the position that because of Section 5929 (a) (b) (c) and (d) of the City Code of Birmingham of 1930, it was the duty of the plaintiff to stop in obedience to the red light shining in his direction. Plaintiff contended that by virtue of Section 5920 of the same Code, — the defendant could not pass through the procession, — that it was therefore the defendant's duty to stop even on the green light while the plaintiff was privileged to go through on the red light."
Appellant's counsel go on to remark:
"The trial court gave the jury a clear and unmistakable idea of his view as to which of the two ordinances controlled the situation. In his oral charge be stated in part: 'Consequently I say to you that if a funeral procession is wending its way down the street it is up to the people in automobiles to take due notice and to govern themselves accordingly, and not to drive into a funeral procession, because it was necessary to preserve the status quo to prevent or minimize accidents. That is my concept of the matter. Consequently, even though if you get the green light to go ahead which would carry you right across the funeral procession, or right with it, I don't think it gives you that right, if there is a funeral procession wending its way across the intersection at that particular time.'
"Attorney(s) for the defendant (appellant) excepted to the foregoing portion of the court's charge. In addition he (they) requested, and the court refused to give, numerous written charges stating in effect that it was the duty of the driver of the plaintiff's car to stop at the intersection in obedience to the red traffic light. The refusal to give these instructions, together with (giving) that portion of the court's oral charge above quoted, constitute the basis of the assignments of error here argued."
We merely observe that we are unable to find any provision of the laws of the City of Birmingham, or others, controlling, which exempts one travelling as the driver of appellee's car — in a funeral procession — from obeying the terms of Section 5929 of the Birmingham City Code of 1930.
And we do not see how one could be held culpable for driving into and across a funeral procession, on a street intersection in a big city, with nothing — so far as the testimony shows — to put him on notice that it was a procession — funeral or otherwise — and when he stoutly affirms he did not know it was a procession.
So, it is our conclusion, and we hold, that the trial court erred in giving to the jury the portion of his oral charge which we have quoted hereinabove.
Likewise it was error, and of course prejudicial, to refuse to give to the jury appellant's written requested charges 9, L., G., 8, A., F., 7, B., D., and 11.
It would follow that the trial court was in error in refusing to grant appellant's motion to set aside the verdict of the jury and award it a new trial.
For all these errors the judgment is reversed and the cause remanded.
Reversed and remanded.
BRICKEN, P. J., dissents.