53 Ala. 70 | Ala. | 1875
The demurrers to the complaint, original and amended, were properly overruled. The action corresponds to the common law action of trespass on the case, for the recovery of damages for personal injuries sustained by the plaintiff, in consequence of the negligence of the defendant and its servants. The injury the plaintiff suffered — the manner in which it was produced, and the negligence imputed to the defendant as its cause, are stated with sufficient certainty. The allegation that the injury happened in consequence of the negligence of the defendant, implies that there was no negligence on the part of the plaintiff contributing to it. It was not necessary to aver specially that the plaintiff was in the exercise of reasonable care, or without fault, when the injury occurred. If on the evidence it appeared he was not, and the injury was attributable either wholly or in part, directly to such want of care, it was available to the defendant under the general issue. Steele v. Burkhardt, 104 Mass. 59. Nor is the complaint demurrable, if it is conceded that some of the averments of special damage embrace causes for which he cannot recover, while other averments embrace causes for which he may recover. The averments of such causes could be stricken from the complaint, and it would still disclose a good cause of action. These averments are therefore mei’e surplusage, not affecting the sufficiency of the complaint. Perry v. Marsh, 25 Ala. 659.
The general principle, that although a defendant has been guilty of culpable fault or negligence, producing an injury, yet, if his act was not wanton and intentional, and if the plaintiff by his own misconduct or negligence amounting to a want of ordinary care, essentially contributed to produce the result, he cannot recover, is not controverted. The principle is applicable in all cases, where injuries to persons or property form the subject of inquiry. The reason on which it rests, as stated by Mr. Wharton, is, “that by the interposition of the plaintiff’s independent will, the ca'sual connection between the defendant’s negligence and the injury is broken.” Law of Negligence, § 300. In the adjudged cases, the reason most frequently assigned, is, that were the law otherwise, a plaintiff might compel compensation for his own wrong; and, being in fault, it is not possible to ascertain what proportion his fault bore to the fault of the defendant, or whether without his fault, injury would have been produced. Adopting either form of expressing the reason, involves that the plaintiff is capable of volition — capable of legal wi'ong. The principle is therefore accepted with the qualification, that the plaintiff to whom it is applied, is capable of an independent will — " f legal wrong. Wharton, Law of Negligence, § 301. When the act or omission attributed to the plaintiff as contributing with the negligence of the defendant, in causing the injury, is the result of compulsion forced upon the plaintiff, it will not be viewed as the act or omission of an independent will, debarring him from redress for the damage he may sustain. Ib. § 89. If a man under a sense of superior duty, so instantaneous, and of such a high and absorbing nature, as for the time renders him unconscious of impending danger, should' voluntarily expose himself to it, contributory negligence will not be imputed to him. In such case, the defendant must be regarded as the real and only author of the injury which may ensue. His want of ordinary care invoked the peril, giving rise to the high duty which must be discharged, even though it possibly involved the loss of life or limb to the plaintiff. The illustration is found in a recent case: Eckert v. L. I. R. R. Co.,
It would seem to follow, that a child under the age of seven years, should be absolutely exempt from the operation of the principle. Thought, discretion, judgment or will cannot be legally imputable to him — he cannot be adjudged guilty and punished for crime. Bishop Crim. Law, § 461,
The case of Lynch v. Nerdin, 1 Ad. and Ell. 28, (41 Eng. Com. Law, 422), has been doubted in England, but has never been overruled, and has been accepted as a very just and sound exposition of the law by the courts generally of this country. The facts were that the defendant negligently left his horse and cart unattended in the street. The plaintiff, a child about seven years of age, got upon the cart in
When the injury occurred, the plaintiff was three or four years of age — was attended by his brother but a year or two older. The place of the injury was one of the ancient and principal streets of the city of Mobile, which this court near forty years ago, declared the municipal authorities of the city could not, without the sanction of the legislative power of the State, obstruct, or render less commodious to the free passage of the citizen, by the erection of a market for public use and convenience. State v. Mayor and Aldermen, 5 Port. 279. In the language of the common law, it is the Ring’s higlmay — a thoroughfare, a public passage for the King and all his subjects. The individual right of every citizen, no matter of what age or sex; whether sane or insane, lame or halt, blind, deaf or dumb; to pass and repass on this highway is of the same nature as his dominion over his own premises. So long as it is used as a highway, without prejudice to the right of others to a similar use, the right of use is absolute and unqualified. The easement the defendant enjoyed was subordinate to this paramount right of the citizen, and must have been used, so as to narrow and circumscribe it as little as possible. The plaintiff was lawfully on this highway — lawfully on that part of it devoted to the crossing of those on foot from the one side to the other. His presence there, in such use as he was capable of making of it, should have induced every mature person, to take greater care than he otherwise would have taken — a degree of care adapted to the plaintiff’s capacity to protect himself. Whoever failed in this duty, if the failure resulted in injury to the plaintiff was guilty of actionable negligence. The defendant or its servants, should have exercised greater care in the running of its cars to avoid coming in contact with the plaintiff, than they would have exercised if an adult had been in the plaintiff’s position. Not observing it, they must be responsible for the injury resulting to the plaintiff.
Whether the plaintiff and his brother had been by their parents sent on- an errand, or were merely permitted to go ipto the street, for exercise or diversion, does not appear from
The statute declares, “no judgment can be arrested, an
Tbe judgment is affirmed.