56 So. 1013 | Ala. | 1911
While it has been repeatedly held that the complaint in cases of this character need not define the quo modo, or specify the particular acts of diligence omitted, yet, when simple negligence constitutes the cause of action, it is incumbent upon the plaintiff to bring himself Avithin the protection of the negligence averred by alleging such a relationship as Avould enable him to recover for simple negligence.— L. & N. R. R. Co. v. Holland, 164 Ala. 73, 51 South.
Count 1, however, in the case at bar, meets the requirements, and shows that the plaintiff’s intestate was not a trespasser upon the defendant’s track, and was in a position to invoke the negligence averred. She was rightfully upon a street in the city of Birmingham, and had as much right to be there as did the car of the defendant. Their rights were equal, and they were both rightfully upon said public highway. The intestate as a citizen or traveler and the defendant, while operating a car on its own track, was simply using the highway as such in one of the uncommon but modern ways of travel, each one owing the other the duty to avoid a collision or injury by the use of ordinary care. The complaint sufficiently avers that the defendant was operating a car along or upon a street in the city of Birmingham for the transportation of passengers upon said street, and we must assume that the track was the ordinary street car track, and so embodied in the street and connected therewith as to become a part of the highway. Such a street railway as was described in the case of Glass v. M. & C. R. R. Co., 94 Ala. 581, 10 South. 215, and which was there conceded to be a part of the highway, but unlike the track dealt with in said case. There the roadbed was an ordinary steam railroad track, forming no part of the highway, and the injury occurred upon a trestle crossing a ravine. The case of Birmingham R. R. v. Jones, 153 Ala. 157, 45 South. 177, while holding that the track there considered was not a part of the highway, the opinion expressly excepted “what was known as street railways” usually constructed in such a manner as to be incorporated in and become a part of the street. The count
It is next insisted that the complaint does not show what the intestate was doing when injured, that she may have been in such a position as to deprive her of protection even upon a highway. Precision and nice pleading would doubtless suggest that the pleader should aver that the intestate was traveling the street, crossing over or going up and down it, or whether on foot or in a vehicle or upon a horse, yet these averments are not absolutely essential, as the count shows that she was not a trespasser, hut was, presumptively, rightfully upon the street when run over by the defendant’s street car. If she was misusing the street, so as to make her position at the point when injured wrongful or improper, this would be matter of defense, as the complaint showed that she was not a trespasser and had a right to be where she was when injured, regardless of how she got there, and, if she was guilty of negligence as to the manner in which she conducted herself at the time, it was a matter of defense.
Count 8 in the case of Anniston Electric & Gas Go. v. Elwell, 144 Ala. 317, 42 South. 45, did not show that the defendant’s track was a street car line so as to he a part of the highway, and, unless it was, the plaintiff may have been a trespasser, under the Jones and Glass Gases, supra, notwithstanding the injury may have occurred upon the streets of Anniston. Nor did it appear from the complaint in the case of Ensley v. Chewning, 93 Ala. 25, 9 South. 458, that the plaintiff was not a trespasser, it does not give the place of the accident, or show that the defendant’s track was a street car line on a street at the point where the plaintiff was injured. It appears from the record (page 30) that, after the court
In the case of L. & N. R. R. Co. v. Woods, 105 Ala. 561, 17 South. 41, the opinion states: “When a demurrer or pleas are filed to a complaint, and the record shows a subsequent amendment of the complaint by adding additional counts or otherwise, the party desiring the benefit of the demurrer or pleas which -were filed previous to the amendment against the count as amended should refile them.” This is sound, and, to hold otherwise, courts would have to file for parties, demurrers, and pleas to a complaint in cases in which they did not see proper to do so themselves. A demurrer to an original complaint should not by the court be made applicable to an amended complaint, unless the demurrant refiles it to said amended complaint. It must be noted, however, that the Woods Case, supra,, does not hold that in order to get the benefit of the point, in ruling upon the demurrer or pleas to the count before amendment, they must be refiled after amendment, but simply holds that the original demurrer or plea to the complaint before amendment will not be considered as applicable to the complaint after amendment, unless refiled. In the case of Central of Ga. Ry. v. Ashley, 160 Ala. 580, 49 South. 388, it is said: “When demurrers are filed to pleadings, and before action on the demurrers the
The statute (section 5870 of the Code of 1907) expressly provides that a party does not lose his right to assign error upon a ruling against him by pleading over, unless he has subsequently had the benefit of same. This statute was held to be applicable to a question like the one under consideration. — Seaboard Mfg. Co. v. Woodson, 94 Ala. 143, 10 South. 87. So the question that arises is, When does he waive the right to review the ruling upon his demurrer or plea, notwithstanding the complaint was amended subsequent to said ruling? The rule is that if the pleading is amended so as to eradicate the part objected to by the plea or demurrer or in an attempt to obviate the point taken by the plea
Count 2 is substantially the same as count 1, and there was no erorr in overruling the demurrer thereto, for the reasons stated as to said count 1. In upholding these counts, however, we do not wish to commend them as models of good pleading, and repeat that much confusion could have been saved by setting out what the intestate was doing on the street or track when run over or against as well as the nature or character of the track at the point of the injury.
Count 4 is bad, and was subject to the defendant’s demurrer. It does not aver that Gillespie (or Dykes) was the agent or servant of the defendant or that he was in charge of or operating the car for the defendant,
A complaint on demurrer must be construed most strongly against the pleader, but this rule is not needed to condemn count 4, as it cannot be well construed to charge negligence or a cause of action against this defendant. While our system of pleading is most liberal, it does not uphold a complaint which does not connect the party sued directly or indirectly with the injury set out. — Gordon v. Tenn. Co., 164 Ala. 205, 51 South. 316.
Plea 7 failed to aver that the intestate negligently attempted to cross the track in front of and in- dangerous proximity to the approaching car and was bad for this reason, but, if said plea could be construed as meaning that she negligently did so, it would be but a duplicate of plea 8, and under which the defendant got the full benefit of plea 7.
The bill of exceptions was signed within the time prescribed by the statute by Judge Senn, judge of the city court, and who tried the case, and the fact that he was ill and was not at the time of the signing of the bill in the actual discharge of his duties as a trial
There was no error in refusing charge 2 requested by the defendant. If not otherwise bad, it pretermits knowledge of the approach of the car.
As a rule, one who suddenly acts wildly and madly, when unwarned peril surrounds him, is not as matter of law chargeable with contributory negligence for failing to exercise the obligations of care and prudence imposed upon a prudent man under normal and ordinary conditions as instinct would prompt him to use diligence to save his life or insure his safety, and the law wisely leaves it to the jury to determine whether or not his conduct under such circumstances amounts to negligence. — L. & N. R. R. Co. v. Thornton, 117 Ala. 282, 23 South. 778; R. & D. R. R. Co. v. Farmer, 97 Ala. 141, 12 South. 86. Of course, this rule does not obtain and cannot be invoked by one who wrongfully and voluntarily puts himself in such a dangerous position.— McCauley v. Tenn. Co., 93 Ala. 357, 9 South. 611. It Avas, hoAvever, a question for the jury to determine Avhether or not the intestate was guilty of negligence in placing herself in the dangerous position from which she was trying to extricate herself by crossing over to the second track. Again, it was a question for the jury to determine whether or not she was guilty of negligence in attempting to cross the track in front of the approaching south-bound car, apart from the question of peril, even if she knew of its approach, as there was proof that she was signaling it to stop, and the jury could infer that she had reason to believe that it would stop before striking her or else slacken its speed so as to
Charge 3 is in the abstract correct, and there ■would be no reversible error in giving same upon the next trial. As to whether or not its refusal would be justified so as to save a reversal of this case, we need not decide as it must be reversed for other reasons.
Charges 5, 6, and 17 each attempt to invoke contributory negligence of the intestate in and about crossing the track as against certain negligence therein hypothesized. The doctrine of comparative negligence does not exist in this state, and if the plaintiff’s negligence, though slight, is the proximate cause of injury, he cannot recover for the simple antecedent negligence of the defendant, but the contributory negligence to preclude him must be specially pleaded, and it is only such negligence as is pleaded that can defeat a recovery, and not some proximate contributory negligence not specially pleaded. — Sloss Co. v. Hutchinson, 144 Ala. 221, 40 South. 114; Southern R. R. Co. v. Shelton, 136 Ala. 191, 34 South. 194; Ala. Mid. R. R. Co. v. Johnson, 123 Ala. 197, 26 South. 160; Birmingham v. City Stable Co., 119 Ala. 615, 24 South. 558, 72 Am. St. Rep. 955; A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269; 47 South. 84. The case of Birmingham. R. R. Co. v. Bynum, 139 Ala. 389, 36 South. 736, seems to be opposed to this doctrine or the court evidently overlooked the fact that charge 5 in said case did not hypothesize the contributory negligence pleaded in reversing said case for the refusal of said charge 5, but it is unnecessary to expressly overrule said case at the present time for charges 5, 6 and 17 can be condemned for other reasons, even if we concede that they hypothesized the negligence as
As to charge 5 if not otherwise bad, its refusal can be justified for being abstract as to the failure to keep a lookout as the niotornian was keeping a lookout, and testified without dispute that he saw the intestate while in the center of the north track, and before she came on his track.
Nor did the intestate’s negligence relieve him of sounding the gong after he saw her on the track, and in this respect the charge fails to take account of subsequent negligence.
Charge 6 fails to take into account any subsequent negligence as mere negligence can include subsequent negligence, and the charge could have misled the jury to believe that the plaintiff could not recover for subsequent. negligence in attempting to cross the track. The criticism of the first part- of charge 5 fully covers charge' 17.
There was no error in refusing charge 8, requested by the defendant. This charge, in effect, pretermits plaintiff’s right to recover for subsequent negligence as set forth in count 5, if the intestate was guilt} of the slightest negligence such as is pleaded, when as a matter of fact there was no plea setting up negligence on the part of the intestate subsequent to or concurrent with the negligence set forth in said count 5. In other words, the charge instructed a finding for the defendant, except for a wanton or willful injury, upon proof of defendant’s pleas of contributory negligence, when none of them answered count 5, which charges subsequent, negligence. The demurrers were sustained to these special pleas as to count 5, yet the charge requests a finding for the defendant upon proof of pleas, which did not go to said count, and notwith
Charges. should hypothesize the facts relied upon as a defense, and not require the jury to examine and consider the pleas in order to determine what is meant by said charges. — A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84.
Charge 9 is also faulty for seeking to defeat plaintiff’s right to recover for subsequent negligence upon proof of the defendant’s special pleas. True, the charge says you cannot award damages for any “mere” negligence on the part of defendant’s servants, but the word “mere” cannot be construed as meaning only initial negligence, but is broad enough to mislead the jury to the belief that the plaintiff could not recover for any sort of negligence upon proof of defendant’s special pleas.
The plaintiff amended his complaint by striking out count 9, as well as others, before the case was submitted to the jury, and the court did not err in refusing defendant’s requested charge 11.
For the error above suggested, the judgment of the city court is reversed, and the cause is remanded.
Reversed and remanded.