120 So. 149 | Ala. | 1929
Lead Opinion
The material averments of the complaint appear in the foregoing statement of the case.
The only question here presented is the action of the court in striking from the complaint the elements of damage claimed therein, that plaintiff contracted pneumonia, and her constitution was weakened and undermined as a proximate result of the alleged negligent act of defendant in causing or permitting the highway to remain unsuitable for safe travel by reason of loose dirt and mud, and thereby causing the car in which plaintiff was riding to become mired or stuck in the mud.
The cause was originally assigned to Justice GARDNER, who prepared the opinion in the case, but upon consideration of the cause in consultation a majority of the court were not in accord therewith, but entertain the opinion that, in view of the explicit averments of the complaint showing a direct causal connection between the negligence alleged and the consequential injury, the motion to strike should have been overruled, and the question presented as one of fact. The majority further think that this conclusion is not in conflict with the authorities noted in the opinion of Justice GARDNER, which is set out below as the dissenting opinion in the cause.
It results that the judgment is reversed, and the cause is remanded.
Reversed and remanded.
SAYRE, THOMAS, BOULDIN, and FOSTER, JJ., concur.
BROWN, J., not sitting.
Dissenting Opinion
In the recent case of Whitman v. Mobile O. R. Co.,
The expression approved in L. N. R. Co. v. Quick,
Applying the principles of these authorities to the instant case, I am persuaded the trial court did not err in its ruling. As a practical question of common sense, and in *663
the light of common experience, I do not think it can be said that the contraction of pneumonia or other serious illness would naturally and usually follow, in the ordinary course of events, the negligent act of permitting the road to be in such condition as to cause a car to sink in the mud or mire. Or, to state it differently and in the language of the Armstrong Case, supra, it is not such an injury as a prudent and experienced person, fully acquainted with all the circumstances which in fact existed, would have thought reasonably possible to follow, if they had occurred to his mind. I consider the case of Whitman v. Mobile O. R. Co., supra, here very much in point, as well also by analogy Davison v. The Maccabees,
The cases cited by appellant (Louisville N. R. Co. v. Dancy,
I do not think that a prudent and experienced person would consider it reasonably possible that, as a result of the bad condition of the road, a traveler would so expose himself to the inclemency of the weather an entire night and contract pneumonia thereby. It does not follow "in the ordinary course of events."
I think the trial court correctly ruled, and respectfully dissent.
ANDERSON, C. J., concurs in the foregoing views.