# Government Street Lumber Co. v. Ollinger > Alabama Court of Appeals · February 21, 1922 · 18 Ala. App. 518 URL: https://www.frixlaw.com/law-library/cases/9824667 ## Case - **Full name:** Government Street Lumber Co. v. Ollinger. - **Court:** Alabama Court of Appeals - **Decided:** February 21, 1922 - **Citations:** 18 Ala. App. 518; 94 So. 177; 1922 Ala. App. LEXIS 188 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Samford - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9824667 ## Opinion text On Rehearing. The writer acknowledges the dignified and courteous, though forceful, criticism, in brief of appellee’s counsel, of the court’s failure to pass upon each charge given at the request of appellee and those refused to appellant. The court was of the opinion that it had stated the law of the case with sufficient clearness to guide the trial court in another trial, and sought to avoid the unnecessary labor incident to the passing upon form and contents' of each of the. written charges drawn by skillful lawyers and drawing narrow distinctions. Judging from the briefs filed, appellant’s counsel found no difficulty in understanding and digesting the court’s opinion. [12] It will be observed that the negligence complained of in this case is the sudden turning of the defendant’s automobile across the road at a time when plaintiff’s automobile was attempting to pass. There is no allegation or proof that the driver of defendant’s automobile was a deaf-mute, daydreamer, or drinking, or was otherwise incapacitated to expertly handle the machine he was driving, as suggested in appellee’s brief. If so, and injury had proximately resulted therefrom, such would have been the subject of pleading and proof. Nor do wo think the traffic on country roads has reached proportions where it can be said, as matter of law, that a person is guilty of negligence if, in crossing the road, he fails to stop, look, and listen, or even if he fails to stop, look, or listen. For aught that appears in this case, either by pleading or proof, the accident occurred on a country road, the drivers of both cars were capable and normal, the driver of defendant’s car had no notice of the approach of a car from his rear, and no reason to believe one was in close proximity to him, or if there was that it was not under complete control. Under these conditions he turned slightly to the right of the road, preparatory to turning into a road leading off from the main road, to the left, and upon reaching the side road turned into it, thus suddenly bringing his car across the road at a time when plaintiff’s car was attempting to pass, after having acquitted itself of negligence, and mistakenly believing that defendant’s driver had heard the warning and accorded it the right of way. [13] If these are the facts in the absence of evidence of subsequent negligence the accident was unavoidable, and neither party could recover in an action for simple negligence. As we tried to point out in the original opinion, the rule would be different in town *523 or city where the constant traffic itself would require a greater degree of care, or even on a county highway, where the traffic had become so heavy and frequent as to itself constitute notice. [14] In line with the foregoing, charge 1 given at the request of appellee was error. Under our view of this case, before defendant could be charged with negligence by turning shortly across the road to the left, as it is alleged was done in this case, the driver of the forward car must have had notice of the approach of the plaintiff’s car, or such facts must have been proven as to have been in law equivalent to notice. The testimony may be to the effect that the horn was blown loud enough for defendant’s driver to have heard, but as to whether he heard or not was a conclusion to be drawn by the jury, and charges of this character invade the province of the jury, as it is for the jury to say, on a consideration of the whole evidence, whether the defendant had notice. No facts having been shown that the place where the accident occurred was other than an ordinary country road, charge 6 as requested by defendant asserts a correct proposition of law, and was given by the court, and rendered the giving of charge 3 so far as it defined defendant’s right to the road unnecessary, but the charge is faulty in that it requires too much of plaintiff. If the plaintiff gave a signal, and defendant appeared to have heard it, and apparently answered it by turning to the right of the road, the plaintiff would not be guilty of contributory negligence, by acting upon the reasonable appearance of things. Charge 5 we think is covered by charge 6. [15] Charge 7 goes too far in asserting the rights of a forward car on the public road. Its use and occupation of the road must be reasonable; it must not unduly obstruct the road, and the reasonableness of the use depends on the frequency of the use of the road by others. [16] Charge 9 required too high a degree of care on the part of plaintiff’s driver, and for that reason was bad. Charge 10 is an argument. Charge 12 was covered by other charges. Charge 13 is the law, and should have been given, and embraces the same principle as set out in charge S. Opinion extended. • Application overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9824667. Public record. Not legal advice.