Birmingham Railway, Light & Power Co. v. Fuqua

56 So. 578 | Ala. | 1911

DOWDELL, C. J.

The eighth count of the complaint to which a demurrer was interposed was unobjectionable on the ground assigned. This count set out the ordinance of the city, alleged to have been violated, in hue verba, and concluded with the averment that the ordinance “was in force and effect” at the time of the alleged injury. This in pleading, where the negligence complained of consisted in the failure to comply with a city ordinance, was sufficient and tantamount to averring that the ordinance was a valid one. In 29 Cyc. p. 568, the principle is stated as follows: “Where an injury occurs through the neglect of a party to comply with a city ordinance, such ordinance must be pleaded, although the violation thereof is not claimed as negligent per se, and it must he further alleged that the defendant had the means and opportunity to perform the duty in time to avert the injury. It need not he set out in haec verba; hut that part of the ordinance relied on, or all the substantial parts thereof, should be set out. Moreover, it should be directly averred that the ordinance was in force (italics ours) at the time the injury occurred.” We quote the above from the test only to show that the averment that the ordinance was in force at the time the injury occurred was a sufficient averment of its validity.

On the trial the plaintiff introduced in evidence the hook containing the ordinances of the city of Elyton, including the ordinance in question. This evidence was without dispute or objection, and without more, upon the introduction of the book of ordinances of the city, the presumption of the validity of the ordinance attaches. If the ordinance was invalid by reason of any irregularity in its passage, this was matter of defense to be set up by the defendant.

There was evidence tending to show a violation of the ordinance set out in the eighth count and consequent injury, and therefore the general charge requested for the defendant under this count was properly refused.

The plaintiff’s intestate was run upon and killed by the defendant’s car in a public street, and at or near the crossing of two public streets, in the town of Elyton. The accident occurred about 5 o’clock in the morning on the 10th of January, 1909. The track of defendant’s street car line was on a grade with the street. The seventh count of the complaint charged wanton injury. There was evidence tending to show, and it was of consequence open for the jury to so find, that the deceased was lying down on the track, that the track was straight for some considerable distance, that the car carried an are headlight which would enable the motorman to see an obstruction 200 or 300 feet ahead, on the track, if he was keeping-a lookout, which it was his duty to do.

The evidence as to the speed of the car varied from 8 to 20 miles an hour, and further tended to show that at 8 miles an hour it could have been stopped in 10 to 20 feet, and that there was no effort to- check its speed until it had run upon the deceased; that it was in the “heart” of the town and at a place in the street traveled in the early morning by -working people going to their work; that the motorman was at the time and to some extent under the influence of liquor; and that the motorman was familiar with the place and its surroundings.

Apart from any consideration of the question of recklessness in the high rate of speed at the time and place, and of a violation of a city ordinance in the running of the car at a greater rate of speed than that fixed in the ordinance, under the tendéncies of the evidence it was' open for the jury to find that the motorman saw the deceased in time to have averted the injury, but consciously omitted to make any effort to do so until it was too late, and this with a conscious knowledge of the probable consequences of his failure to act. And this being SO' would constitute wantonness. The court committed no error in refusing to the defendant the general charge requested in its favor under the seventh count. — Southern Ry. Co. v. Shelton, 136 Ala. 191, 34 South. 194.

The ordinance of the city of Ely ton, which fixed the rate of speed of street cars running in the streets of the city, was not limited to any particular hours of the day, and therefore applied to the running of cars at 5 a. m. as well as at any other hour of the day.

In respect to the duty of keeping a lookout for obstructions or persons on a railroad track, the law recognizes no distinction between keeping a lookout for one prone, and one erect, on the track. The duty of keeping a lookout is the same in either case. There was no error in refusing charges 3, 5, and 6, requested by the defendant.

Charge 8, refused to the defendant, was inherently infirm in the statement of the law. The law indulges no such right of presumption as that invoked by the charge. The duty imposed of keeping a lookout is in refutation of such a right of presumption.

There was no error in overruling the motion to exclude the testimony of the witness J. S. Sutter, “Well, you could See where he dragged along kinder.” In view of what had just preceded in this witness’s testimony, this was but the statement of a collective fact — a shorthand rendering.

We fail to see that the trial court committed any reversible error, and the judgment will be affirmed.

Affirmed.

All the Justices concur.