C. J. Montgomery, then the bill, in effect, denies the fact that C. J. Montgomery was at the time the sole owner of the mortgage, as it negatives the assignment of Lynch's interest in said mortgage.

Worthy was at least a proper, if not necessary, party. Nor was the bill bad for not making Northern a party thereto. While it mentions the fact that he had a prior mortgage, it expressly avers that the same had been fully paid.

[4] It is undoubtedly the law that a mortgagee may foreclose his mortgage by accepting a deed from the mortgagor in lieu of a foreclosure by sale under the terms of the mortgage, or by proceeding to do so in a court of equity. Farrow v. Sturdivant Bank, 184 Ala. 208, 63 South. 973; Stoutz v. Rouse, 84 Ala. 309, 4 South. 170. And when such is the case, the mortgagee and vendee to the deed occupies a position similar to a purchaser at a foreclosure sale. Dennis v. McEntire, 187 Ala. 314, 65 South. 774.

[5] This being true, it would seem that a junior mortgagee would have to proceed within two years to redeem, after receiving notice, actual or constructive, of such contractual foreclosure. Such a deed, however, cannot operate as a foreclosure when made to one who has only an interest in the mortgage as distinguished from the sole or entire ownership of same.

The respondent's pleas 1 and 2 would be a good defense to the complainant's bill but for the fact that they fail to take account of, or to traverse, that averment to the effect that the mortgage was made to Worthy and Lynch jointly, and that C. J. Montgomery never received an assignment of the interest of said Lynch before the execution to him of the deed set up as a foreclosure of the mortgage. If C. J. Montgomery owned the entire mortgage when the deed was made to him, and which was recorded two years before the bill was filed, the complainant cannot now get a mortgage foreclosed that had already been foreclosed and as one to redeem; whether as to the statutory or equitable right, it comes too late. On the other hand, if the mortgage was made to Worthy and Lynch jointly, and C. J. Montgomery had assigned to him only the interest of Worthy, as charged in the bill, then the deed from the mortgagor to him could not and did not operate as a foreclosure so as to cut this complainant off from the right to maintain the present bill.

The trial court erred in sustaining the demurrer to the bill and in holding pleas 1 and 2 sufficient, and the decree is reversed, and the cause is remanded.

Reversed and remanded.

MCCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.

(207 Ala. 211)

McCAA v. THOMAS. (6 Div. 560.) (Supreme Court of Alabama. Feb. 2, 1922.) 1. Appeal and error 1078(1)—Assignments not argued will not be considered.

Assignments of error, not insisted upon in argument, will not be considered.

2. Highways 166-Highway act strictly construed, in so far as penal or In derogation of the common law.

Such of the provisions of Acts 1911, p. 634, regulating the use of highways, as are penal or in derogation of the common law, are to be strictly construed.

3. Highways 166—Statute requiring warning by automobiles at "intersection" not limited to roads intersecting at right angles.

The provisions of Acts 1911, p. 634, §§ 18 and 19, requiring a motor vehicle approaching an "intersection" where the view is obstructed to give warning, applies to any intersection of highways outside the limits of a city or incorporated village, where the driver on one highway was prevented from seeing a vehicle approaching the same intersection on the other highway, and is not to be construed to apply only to two roads that approach and intersect at right angles.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Intersect-Intersection.]

4. Trial 256 (10)-Charge motorcyclist must be able to stop, approaching Intersection, within reasonable distance, held not errone. ous, in absence of request.

A charge that a motorcyclist, approaching a road intersection, must have his vehicle under such control that he can stop within a reasonable distance, is not so erroneous that it could not be corrected by an explanatory charge, because it impliedly requires an ability to stop the machine within a reasonable distance. notwithstanding latent defects in its mechanism.

5. Highways 172 (1)—Test of care of driver of motor vehicle is whether reasonably pru. dent man would have so acted.

The test of the care of the driver of a motor vehicle is whether the acts or omissions of the driver at the time and place of, or imwhich would have been done or omitted by an mediately preceding, the accident, were those ordinarily prudent man under the same circumstances.

6. Highways 184(3)-Due care of motorcyclist is for the court only if all men would draw the same conclusion.

Whether a motorcyclist was exercising due care under the circumstances is a question for the decision of the court only when the facts are such that all reasonable men must draw the same conclusion from them; otherwise, it is a question for the jury.

7. Trial 296(13)—Charges

as

which neces

sarily mislead jury cannot be cured.

Charges which necessarily mislead the jury, distinguished from those which have a

tendency to mislead, are erroneous, and are not to be cured by an explanatory charge.

8. Appeal and error 1064(1)—Charge requiring belief from the evidence is not prejudicially erroneous.

A charge requiring the jury to believe from the evidence the facts therein stated to entitle plaintiff to recover, instead of requiring them to be reasonably satisfied from the evidence, is rot prejudicially erroneous.

9. Negligence 82-Charge on contributory negligence as cause of injury held incorrect. Charges that plaintiff cannot recover for personal injuries, if his negligence contributed in the slightest degree to the accident, are erroneous; the test being whether his negligence contributed proximately to his injury. 10. Appeal and error 1064(1)-Erroneous charges on contributory negligence held prejudicial to plaintiff.

In an action for injuries resulting from a collision between a motorcycle and an automobile, charges denying recovery by plaintiff, if he failed to exercise reasonable care which in the slightest degree contributed to his injuries, was prejudicial, and requires reversal.

Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.

Action by John H. McCaa against John H. Thomas for damages for personal injuries sustained in an automobile accident. Judgment for defendant, and plaintiff appealed. Reversed and remanded.

The collision was between a new Studebaker car, being driven by Thomas, and a motorcycle, being driven by McCaa. The testimony was in conflict as to whether the right-hand hub and fender of the car, or the left-hand, was dented and bent; the preponderance going to show that the righthand was dented and bent. There was also dispute in the evidence as to whether signals were given by either party as the two ve hicles approached the intersection of a road where the accident occurred; the testimony for the defendant tending to show that the car was being driven at not over 20 miles an hour, that signals were blown and brakes applied, and that notwithstanding all this the plaintiff, riding rapidly, ran into defendant's automobile with such force as to throw him over the hood of the automobile and onto the road beyond, his motorcycle bouncing back to the other side of the road. Evidence for the plaintiff tended to show that the plaintiff had entered the intersection of the road, had cleared the center of the road on the right, had turned, meeting the automobile, when the automobile, running at a rapid rate, swerved sharply to the left, inflicting the injuries complained of.

The following charges are noted as having been given for the defendant:

(13) The court charges the jury that as a matter of law it is unlawful and a violation of the law for a person, riding a motorcycle upon a public highway, to approach the intersection of said highway with another highway, without giving some signal of his approach, by blowing his horn or otherwise.

(11) The court charges the jury that under the law it was the duty of the plaintiff, on approaching the intersection of the road where the accident or injury is said to have occurred, to have had his motor vehicle under such control as that he could have stopped the same within a reasonable distance.

(18) The law imposes upon the plaintiff in this case the burden of proof; that is to say, before the plaintiff can recover, he must reasonably satisfy the jury, by a preponderance

Evidence only that defendant saw plaintiff on his motorcycle approaching the intersection of the roads at a high rate of speed, while defendant was a short distance away from the point of collision, and that after the collision he did stop his car within a short distance, does not imply that he did not do his duty immediately on perceiving plaintiff's approach, and therefore does not authorize recovery for defendant's subsequent negligence.

(9) The court charges the jury that, if they believe from the evidence that the injuries received by the defendant were proximately caused by his own negligence or want of care, he cannot recover under the first count of the complaint.

(15) If you believe from the evidence that the plaintiff was riding a motorcycle upon a public highway, and approaching the intersection of said highway with the highway upon which the defendant was operating his automo bile at a high and dangerous rate of speed, so that the plaintiff could not control his said motorcycle, and that this conduct on the part of the plaintiff contributed even in the slightest degree to the accident, he cannot recover in this case under the first count of the complaint. (7) I charge you that, if you believe from the evidence that the negligence of the plaintiff, as alleged in any of the pleas of contributory negligence, proximately contributed to his injuries, the plaintiff cannot recover under the first count of the complaint.

Harsh, Harsh & Harsh, of Birmingham, for appellant.

Pennington & Pou, of Jasper, for appellee.

THOMAS, J. The suit, for personal injury caused by a collision between defendant's automobile and plaintiff's motorcycle, resulted in a judgment for defendant. The complaint consisted of counts of simple negligence and for wantonness; the pleas were the general issue and contributory negli

gence.

[1] Assignments of error, not duly insisted upon in argument, will not be considered. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 South. 158.

[2] General rules of the road have been long recognized, and additional or auxiliary provisions, deemed necessary by the Legislature, have been added to meet the increasing and complicated volume of traffic by the old and new methods of transportation thereon. Morrison v. Clark, 196 Ala. 670, 72 South. 305.

[3] Such of the provisions of the act of 1911 (page 634) that are penal or in derogation of the common law must be strictly construed. 25 R. C. L. p. 1056, § 281. Whether the provisions of sections 18 and 19 of that act are liberally or strictly construed, they have application immediately preceding and at the point of the collision-to the locus in quo of the injury, outside the limits of a city or an incorporated village, and at a point where, from the direction in which plaintiff approached the intersection of two roads, the operator of the motorcycle (according to his own evidence) was prevented by obstructions from seeing the defendant approaching the same point driving west along another and different road from that

not be construed to apply only to two roads that approach and intersect at right angles. There was no error in giving, at defendant's request in writing, charge numbered 13.

[4] Charge numbered 11 is challenged by Plainassignment of error and argument. tiff, immediately approaching the point of collision, was required to use reasonable care and to have his motorcycle under such control as to be able to stop it promptly by the use of due diligence and appliances. Whether or not plaintiff proved that he complied with the requirements of the law, and discharged his duty under the circumstances of his approach to the point of collision, was a question for the jury. The use of the words "reasonable distance" in charge 11, as descriptive of plaintiff's duty in the premises, under the surrounding circumstances, as to his mode, method, or control of the motor vehicle being driven to the point of collision, did not render the charge unsusceptible of further explanation, if such was deemed necessary by counsel. Conceding that the proper test of the correctness of the charge was whether plaintiff used reasonable care in having his motorcycle under control and equipped with proper appliances when he approached the point of collision, under the circumstances indicated by the evidence, and not whether he had it under such control as

that, without regard to latent defects in the mechanism of the machine, or in its device for slowing and coming to a stop, he could have stopped it within a reasonable distance, did not render the charge noxious, and so that it could not be explained by the court in the general or special charges.

[5, 6] The duty of a driver of a motor vehicle, discussed in White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 South. 479, is declared to be tested by the fact of whether or not the driver, at the time and place of, or immediately preceding, the accident, was so observing his duty to others, and acting with due regard thereto, as that his reasonable and necessary acts or omissions in the operation of driving, controlling, or stopping the vehicle were those of an ordinarily prudent man under the same circumstances; that is, whether or not an ordinarily prudent man, under the same circumstances, would have conducted himself, or refrained from action, as plaintiff did. This is a question reserved by law for determination by the jury or the court, dependent upon the facts of each case, becoming a question for the decision of the court only when the facts are such that all reasonable men must draw the same conclusion from them; being otherwise, it becomes one for the jury. Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L. Ed. 485. No reversible error was committed in giving charge 11 for