BOULDIN, J.
The suit is to recover damages to person and property, resulting from a collision of a street car with plaintiffs automobile.
Count 1 of the complaint charges that;
“A servant or agent of the defendants, while acting within the line and scope of his employment by the defendants, negligently caused or allowed a street car, then and there under Ms control, to collide with plaintiff’s automobile.”
“Negligently,” as here used, qualifies both alternatives, “caused” and “allowed.” The count is not demurrable in failing to allege “negligently allowed,” etc.
Count 2 of the complaint—
“avers that the said collision, injury, and damages was the proximate result of the negligence of the defendants, in this; That they caused, permitted, or allowed an obstruction, namely, the rails of their said street' railroad on said First avenue, at the place of said collision, to be and remain in said street, to wit, four inches above the surface of said street, and, as a proximate result of said rails being caused, permitted, or allowed to so remain and obstruct said street, the wheels of plaintiff’s automobile were deflected from their course, and said automobile was thrown in front of said street car, and caused to collide with said car as aforesaid.”
Code of 1923, § 2017, requires street railroad companies to—
“maintain and keep in repair the streets between their rails and for eighteen inches on each side, in such manner as the council may prescribe.”
The City Code of Birmingham, § 1S94, requires a street railroad company, in laying tracks upon a street or avenue which has been brought to grade, to conform to the exact grade—
“and if such street or avenue has not been brought to grade, then such railroad must he so laid as to conform to the then surface of the street, so as not to interfere with travel over and along such streets.”
The elevation of the rails four inches above th.e surface of the street of a city manifestly interferes with travel over and along the streets of the city. The averments of count two sufficiently charge 'negligence proximately causing the injury, and the count is not subject to demurrer for «failure to aver a want of due care in the maintenance of its tracks. Birmingham E. & B. R. Co. v. Stagg, 196 Ala. 612, 72 So. 164, and authorities there -cited.
The evidence tends to show that, at the point of the accident, between Forty-Second and Forty-Third streets on First avenue, defendant operated street cars on double tracks. Inbound cars going west used the north track, and outbound cars going east used the south track. The avenue was paved from the curb line on each side to within a few feet of the tracks; but, between the tracks and a space of probably two feet outside thereof, was surfaced with chert or like material. The evidence tended to show: On the morning of the accident, plaintiff was driving his Ford touring car, following an inhound street car. The paved portion of the street was narrow. The street was crowded with inbound automobiles. The street car came to a sudden stop between crossings because of some automobile obstruction in front. While this street car was standing and obstructing the view as to outbound cars, plaintiff drove his automobile across the south track, and collided with an outbound car.
The evidence, as a whole, would support three alternative inferences as to the manner and proximate cause of the collision, viz.:
First. That on the sudden stop of the inbound street car plaintiff, in bringing his caito a stop, and avoiding another automobile to right or right front, cut his car to the left; that the rails of the north track, wet from rain, and raised some four inches above the level of the adjacent surface, caused plaintiff’s ear to skid; that his car was thus thrown across the track near the rear of the standing street car, with the front of his automobile extending into the wake of an outbound street car; that he, at that moment, discovered the approaching car, and, in the emergency, tried to drive his car I across the outbound track, and failed to clear the track in time to avoid the collision.
Second. That plaintiff, impatient to go, cut his ear out of the line of automobiles, drove diagonally across the tracks to pass the standing street car, and thus ran into the outbound street car.
Third. That plaintiff cut across the track, at a point and in a manner which could and would have safely cleared the outbound track, but was so hindered and thrown forward by the skidding of the car that he could not clear the track in time:
Dealing with. the first alternative, if the plaintiff, in the exercise of reasonable care, was seeking to bring his car to a stop behind the standing street car, and was thrown into a position of daffiger by the condition of defendants’ track, and, in the exercise of a reasonable care, in view of the emergency, he sought to- drive forward to safety, the jury were authorized to find plaintiff free from contributory negligence. In such event, it would follow that the accident may he attributed to the negligence of defendants in maintaining their tracks; or, under further evidence, to this negligence placing plaintiff in a position of peril, followed by the negligence of the motorman on the outbound car, either in failing to keep a proper lookout, or to use proper preventive effort after the discovery of peril. Plaintiff’s evidence as to the distance of the outbound street car when discovered by him, with other evidence of the speed and stopping distance thereof, and of the distance it ran after the collision, supports a conclusion by the jury that the motorman discovered, or ought to have discovered, plaintiff’s peril in time to have stopped the street ear, or so reduced its speed as to allow plaintiff’s ear to clear the track. The street car struck the automobile at side and rear, and threw it to south of the track. A moment more would have cleared the track.
Dealing with the second alternative, if plaintiff voluntarily drove his car on the south track, and was struck by the outbound street car, he was guilty of negligence which would bar a recovery, in the absence of negligence after the discovery of peril. The presence of an obstruction to his view of the approaching street car would not acquit him of negligence. When the view is obstructed, other means must be 'resorted to in order to avoid a collision. But his crossing the track would not he voluntary, in the sense here used, if, without negligence on his part, he was placed in a position of peril, and, in the exercise of fair judgment in an emergency, he tried to rush his car across. Negligence in voluntarily crossing the track would not be the proximate cause of the injury, if subsequent negligence of defendant’s motorman intervened.
Dealing with the third alternative, if plaintiff could and would have safely cleared
the track but for the skidding- of the car, the accident may be attributed to the condition of the track as its proximate cause. Driving voluntarily across the track under conditions of safety, but for an unexpected hindrance due to defendants’ negligence, would not he proximate contributory negligence on the part of plaintiff.
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BOULDIN, J.
The suit is to recover damages to person and property, resulting from a collision of a street car with plaintiffs automobile.
Count 1 of the complaint charges that;
“A servant or agent of the defendants, while acting within the line and scope of his employment by the defendants, negligently caused or allowed a street car, then and there under Ms control, to collide with plaintiff’s automobile.”
“Negligently,” as here used, qualifies both alternatives, “caused” and “allowed.” The count is not demurrable in failing to allege “negligently allowed,” etc.
Count 2 of the complaint—
“avers that the said collision, injury, and damages was the proximate result of the negligence of the defendants, in this; That they caused, permitted, or allowed an obstruction, namely, the rails of their said street' railroad on said First avenue, at the place of said collision, to be and remain in said street, to wit, four inches above the surface of said street, and, as a proximate result of said rails being caused, permitted, or allowed to so remain and obstruct said street, the wheels of plaintiff’s automobile were deflected from their course, and said automobile was thrown in front of said street car, and caused to collide with said car as aforesaid.”
Code of 1923, § 2017, requires street railroad companies to—
“maintain and keep in repair the streets between their rails and for eighteen inches on each side, in such manner as the council may prescribe.”
The City Code of Birmingham, § 1S94, requires a street railroad company, in laying tracks upon a street or avenue which has been brought to grade, to conform to the exact grade—
“and if such street or avenue has not been brought to grade, then such railroad must he so laid as to conform to the then surface of the street, so as not to interfere with travel over and along such streets.”
The elevation of the rails four inches above th.e surface of the street of a city manifestly interferes with travel over and along the streets of the city. The averments of count two sufficiently charge 'negligence proximately causing the injury, and the count is not subject to demurrer for «failure to aver a want of due care in the maintenance of its tracks. Birmingham E. & B. R. Co. v. Stagg, 196 Ala. 612, 72 So. 164, and authorities there -cited.
The evidence tends to show that, at the point of the accident, between Forty-Second and Forty-Third streets on First avenue, defendant operated street cars on double tracks. Inbound cars going west used the north track, and outbound cars going east used the south track. The avenue was paved from the curb line on each side to within a few feet of the tracks; but, between the tracks and a space of probably two feet outside thereof, was surfaced with chert or like material. The evidence tended to show: On the morning of the accident, plaintiff was driving his Ford touring car, following an inhound street car. The paved portion of the street was narrow. The street was crowded with inbound automobiles. The street car came to a sudden stop between crossings because of some automobile obstruction in front. While this street car was standing and obstructing the view as to outbound cars, plaintiff drove his automobile across the south track, and collided with an outbound car.
The evidence, as a whole, would support three alternative inferences as to the manner and proximate cause of the collision, viz.:
First. That on the sudden stop of the inbound street car plaintiff, in bringing his caito a stop, and avoiding another automobile to right or right front, cut his car to the left; that the rails of the north track, wet from rain, and raised some four inches above the level of the adjacent surface, caused plaintiff’s ear to skid; that his car was thus thrown across the track near the rear of the standing street car, with the front of his automobile extending into the wake of an outbound street car; that he, at that moment, discovered the approaching car, and, in the emergency, tried to drive his car I across the outbound track, and failed to clear the track in time to avoid the collision.
Second. That plaintiff, impatient to go, cut his ear out of the line of automobiles, drove diagonally across the tracks to pass the standing street car, and thus ran into the outbound street car.
Third. That plaintiff cut across the track, at a point and in a manner which could and would have safely cleared the outbound track, but was so hindered and thrown forward by the skidding of the car that he could not clear the track in time:
Dealing with. the first alternative, if the plaintiff, in the exercise of reasonable care, was seeking to bring his car to a stop behind the standing street car, and was thrown into a position of daffiger by the condition of defendants’ track, and, in the exercise of a reasonable care, in view of the emergency, he sought to- drive forward to safety, the jury were authorized to find plaintiff free from contributory negligence. In such event, it would follow that the accident may he attributed to the negligence of defendants in maintaining their tracks; or, under further evidence, to this negligence placing plaintiff in a position of peril, followed by the negligence of the motorman on the outbound car, either in failing to keep a proper lookout, or to use proper preventive effort after the discovery of peril. Plaintiff’s evidence as to the distance of the outbound street car when discovered by him, with other evidence of the speed and stopping distance thereof, and of the distance it ran after the collision, supports a conclusion by the jury that the motorman discovered, or ought to have discovered, plaintiff’s peril in time to have stopped the street ear, or so reduced its speed as to allow plaintiff’s ear to clear the track. The street car struck the automobile at side and rear, and threw it to south of the track. A moment more would have cleared the track.
Dealing with the second alternative, if plaintiff voluntarily drove his car on the south track, and was struck by the outbound street car, he was guilty of negligence which would bar a recovery, in the absence of negligence after the discovery of peril. The presence of an obstruction to his view of the approaching street car would not acquit him of negligence. When the view is obstructed, other means must be 'resorted to in order to avoid a collision. But his crossing the track would not he voluntary, in the sense here used, if, without negligence on his part, he was placed in a position of peril, and, in the exercise of fair judgment in an emergency, he tried to rush his car across. Negligence in voluntarily crossing the track would not be the proximate cause of the injury, if subsequent negligence of defendant’s motorman intervened.
Dealing with the third alternative, if plaintiff could and would have safely cleared
the track but for the skidding- of the car, the accident may be attributed to the condition of the track as its proximate cause. Driving voluntarily across the track under conditions of safety, but for an unexpected hindrance due to defendants’ negligence, would not he proximate contributory negligence on the part of plaintiff.
Under these well-known rules of law applicable to the several phases of the evidence, defendants were not entitled to the affirmative charge on either count of the complaint.
All requested instructions, which ignored any phase of the evidence upon which the jury, as the triors of fact, could find for the plaintiff, were properly refused to defendants.
Charges, which assume as true, matters as to which the testimony affords ground for inference of their untruth, are properly refused.
Charges based upon negligence of plaintiff in driving into a place of danger,
but ignoring
testimony that his coming into the place of danger was not his voluntary act, as defined above, or ignoring the evidence of negligence after discovery of peril, were properly refused.
A charge instructing the jury as matter of law that the condition of the track did not proximately contribute to the injury -was properly refused upon grounds above discussed.
There was no error in the court’s oral instruction that the law required the railway track to be laid and kept at the same level as the street, or as nearly so as practicable. This instruction is to he taken in connection with the court’s entire instructions on the subject.
Section 1599, Code of Birmingham, required tho street railway to keep in repair that part of the street between the tracks and two feet on each side thereof, and so maintain tho street as not to impede the free passage of vehicles over them. Code of 1923, § 2017, confers upon municipalities generally power to require such maintenance for eighteen inches on each side of the track. The court’s charge on the subject followed the city Code. It is immaterial to inquire whether the city of Birmingham had power to extend the duty to the space of two feet outside the track. The evidence made no issue as to failure of duty in the six-inch space between the distance fixed by the state Code and that by the city Code. The negligence alleged and relied upon in evidence was the condition immediately adjoining the rail causing a skidding of plaintiff’s car.
Tho gravamen of count 2 was negligently maintaining the track so that the rails were above the level of the street to such extent as to constitute an obstruction causing the injury. The failure of the court, in his oral charge defining the issues, to require literal proof that the rails were four inches above the level of the street, was not error.
We find no reversible error in the several rulings presented.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.