This is a suit instituted by Lewell Taylor, a minor who sues by his next friend, Leofice Taylor, against Brownell-O'Hear Pontiac Company, Inc., Ralph W. Ritchie, W. L. Montgomery and Crawford Johnson & Company, Inc., as defendants, for damages alleged by the plaintiff to have been suffered by him in an automobile accident on October 12, 1952. It is alleged that the plaintiff at the time of the accident was a minor under the age of seven years and that on that date he was injured as a proximate consequence of the negligence of the defendants in the operation and control of a motor vehicle at a certain point on Second Avenue, North, between Seventh and Eighth Streets in the City of Birmingham, Alabama.
When the case came on for trial all the defendants were stricken except Brownell-O'Hear Pontiac Company. On the first trial, the jury being unable to agree, there was a mistrial. The case came on for trial the second time and the jury returned a verdict in favor of plaintiff against the defendant in the sum of $7,500. On motion for a new trial the verdict of the jury and the judgment of the court thereon was set aside and an appeal resulted in which the ruling of the lower court was affirmed. See Taylor v. Brownell-O'Hear Pontiac Company, Inc., 265 Ala. 468, 91 So.2d 828.
Later on the cause was again reached for a third trial on the same pleadings, namely, plaintiff's complaint charging simple negligence as proximately causing his injury, to which defendant pleaded the general issue in short by consent. On this trial the jury returned a verdict in favor of the plaintiff and against the defendant for the sum of $10,000 and judgment was rendered by the court thereon. There was a motion for a new trial, which the trial court overruled. This appeal followed.
Tendencies of the evidence showed substantially in part the following: On the day of the accident the plaintiff, a small boy five years of age, was attending a kindergarten which was then being operated and had been operated for approximately fifteen years or more prior to the accident in the basement of a brick church called Mt. Calvary Baptist Church. He had been allowed to leave the kindergarten by the teacher at lunch time to go home and get some money to pay for his lunch. The accident occurred at 11:30 A.M., the lunch hour being from 11:30 A.M. to 12:30 P.M. At the time of the accident there were about thirty-five to forty pupils attending this school. All were little tots between the ages of three and six years. The accident happened on October 12, 1951, on Second Avenue, North, in the City of Birmingham, Alabama, between Seventh and Eighth Streets. Second Avenue runs generally east and west in the City of Birmingham. At the time of the accident defendant's driver was operating its automobile traveling in an easterly direction on Second Avenue. It was conceded that the car of the defendant was driven at a speed between twenty-five and thirty miles per hour. As the car approached the buildings located at 717 and 719 Second Avenue on the south side of Second Avenue, the plaintiff came from behind a truck which was parked in front of the building located at 719 Second Avenue and out into the path of the automobile driven by the defendant's agent. The automobile struck the boy, causing the injuries sued for. The building located on the south side of Second Avenue and described as No. 717 was fifty and one-half feet wide, extending right up to the sidewalk. The building No. 719 was twenty-three and one-half feet in width
After the court had charged the jury and the jury had deliberated for some time, the jury returned to the courtroom and requested further instructions from the court as to the city ordinance governing the speed limit at the time and place of the accident. When this occurred the trial judge furnished the jury with a copy of Ordinance No. 850-F amending § 1239 of the General City Code of Birmingham of 1944. Subdivision (a) of the ordinance appears to be almost identical with subdivision (a) of § 5, Title 36, Code of 1940. Likewise subdivision (b) of the ordinance and subdivision (b) of § 5, Title 36, Code of Alabama of 1940, appear to be almost identical. This ordinance was taken back into the jury room and was with the jury during the remainder of its deliberations. The court also on this occasion gave at the request of the plaintiff written charge No. 20, which is the basis of appellant's assignment of error No. 14. We set out charge No. 20 as follows:
The foregoing ordinance sets forth under subsection (a) through subsection (c) certain speed limitations. Subsection (a) makes it unlawful for any person to drive any vehicle upon any street in the City of Birmingham at a rate of speed greater than thirty miles an hour, subject to certain exceptions which are not involved in the case here. Subsection (b) provides that it shall be prima facie lawful for the operator of a vehicle to drive the same at certain speeds under certain conditions and subject to the provisions of subsection (a). These "prima facie" lawful speeds in the City of Birmingham range from fifteen miles per hour in school zones and at blind intersections to twenty miles per hour on any street in the business district where traffic is controlled at intersections by traffic officers or stop and go signals, and up to twenty-five miles per hour in a residence district. Subsection (c) states that it shall be prima facie unlawful for any person to exceed any of the foregoing speed limitations herein mentioned.
The appellee takes the position that the violation of a state statute or city ordinance constitutes negligence as a matter of law and, therefore, the giving of Charge 20 was proper. In support of this position the appellee cites the following Alabama authorities: Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471; Alabama Lumber & Building Material Ass'n v. Mason, 230 Ala. 168, 160 So. 232; Newell Contracting Co. v. Berry, 223 Ala. Ill, 134 So. 868; Cooper v. Agee, 222 Ala. 334, 337, 132 So. 173; Dowdell v. Beasley, 17 Ala.App. 100, 82 So. 40.
We consider, however, that the fallacy in the position of appellee is that sufficient consideration is not given to the particular ordinance involved in this case. The effect
The latest expression by this court is in the case of Frith v. Studdard, 267 Ala. 315, 101 So.2d 305, 308-309. Referring to the refusal of certain of the defendant's written charges which apparently attempted to invoke an instruction that violation of certain prima facie lawful speeds was negligence as a matter of law, the court said:
In Ditsch v. Baggett Transportation Co., 258 Ala. 26, 61 So.2d 98, 99, this court held that the giving of Charge 57, which is as follows: "The Court charges you that if you believe the evidence in this case, Mr. Copeland was not exceeding the speed limit as a matter of law," was erroneous, and in this connection said:
"Counsel for Mrs. Ditsch contend that the giving of the charge [No. 57] constitutes error to reverse for the following reasons: (1) Because it amounts to the general charge as to whether Copeland, the driver of the truck, was complying with the speed regulations of the state; * * *.
In Utility Trailer Works v. Phillips, 249 Ala. 61, 65, 29 So.2d 289, 292, where an ordinance limiting speed of motor vehicles in a business district was under consideration, this court said:
In Roberts v. McCall, 245 Ala. 359, 17 So.2d 159, 160, in referring to charge No. 7, which is as follows: "The court charges that if you believe from the evidence the plaintiff was driving at a greater speed than 15 miles per hour as he approached the intersection of the road testified about, then he was guilty of negligence," this court in condemning this charge wrote:
In Brown Hauling Co. v. Newsome, 241 Ala. 300, 302, 2 So.2d 782, 783, this court said:
See also Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516; Decatur Transit v. Jennings, 253 Ala. 322, 45 So.2d 13; Seitz v. Heep, 243 Ala. 372, 10 So.2d 148; Mobile Cab & Baggage Co., Inc. v. Akridge, 240 Ala. 355, 199 So. 486.
In the case at bar the plaintiff contends that twenty miles per hour was the speed limit at the time and place of the accident and that the operation of a vehicle in excess thereof would conclusively amount to negligence on the part of the driver. The ordinance relied upon, however, refers to "prima facie" limits only and so it was error for the court to give Charge 20, which charged that the operation of the car in excess of twenty miles per hour was negligence as a matter of law.
Since the case must be tried again, we see no point in discussing other assignments of error which may not present questions on another trial of the case.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.