Birmingham Railway Light & P. Co. v. Haggard

46 So. 519 | Ala. | 1908

McCLELLAN, J.

There are two counts in the complaint, which seeks the recovery of damages for injuries to a passenger. The first charges simple negligence, and the second willful or wanton misconduct, on the part of the servants or employes of the defendant in control of the street car on which plaintiff was a passenger. The demurrer to the amended first count was properly overruled. That count, though general in its averments of negligence, conforms to all requirements under our rule permitting, in such cases, a terse and nonspecific allegation of the negligence relied on for a recovery.

Count 2, added by amendment, sufficiently charged willful or wanton misconduct on the part of the agents or servants of the defendant. — Birmingham Ry. Co. v. Wright, 44 South. 1037; Sou. Ry. v. Weatherlow, 44 South. 1019; Mobile, J. & K. C. R. R. v. Smith, 45 South. 57. Hence the demurrer to pleas of contributory negligence thereto was properly sustained. However, we can find in the bill no evidence tending in any way to show willful or wanton misconduct by the parties in control of the car in question. So the affirmative charge as to this count, requested by the defendant, should have been given.

It was averred in the complaint that the car on which plaintiff was a passenger was a transportative agency operated by the defendant,- and that the negligence imputed was that of servants or employes of the defendant. There was no testimony introduced tending to support these averments; but it was insisted below, and the court sustained it, that by pleading, besides the general issue, the alleged contributory negligence of the plaintiff, and by answering and propounding interrogatories filed under Code 1896, § 1850 et seq., the defendant waived the necessity for the presentation by the plaintiff of evidence tending to sustain the allegations stated above. The interrogatories, and answers thereto, were not introduced, or offered to be introduced, in evidence. Hence, and it is hardly necessary to so state they were, in effect upon the trial and the issues raised thereon, without any rightful influence. Indeed, they were just as if without existence. While the court, when properly invited to rule thereon, may consider such mattter with a view to their admission in evidence, yet aside from this the court cannot consider them, any more than the jury, unless they are introduced as evidence in the cause.

Nor could the pleading of contributory negligence be taken by the court as an admission, as of fact, of negligence on the part of the pleader; the general issue being also interposed. — McDonald v. Montgomery Railway Co., 110 Ala. 161, 20 South. 317. It follows that the court unwarrantably ruled that proof of the material averments alluded to had been waived, and also, therefore, erroneously refused to the defendant the affirmative charge. — McGehee v. Cashin, 130 Ala. 561, 30 South. 367.

The state of the case is such we think it unnecessary to consider other errors assigned. The judgment is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.