43 So. 33 | Ala. | 1907
The fourth count of the complaint, to which a demurier was sustained, after averring in general terms the negligent operation of the car or cars bv defendant’s servant, contained the following averment : “And plaintiff avers that said car or cars were negligently operated in this,: that it was a dark night, said car or cais did not have a sufficient headlight, and were being run rapidly, and said negligence proximately caused said intestate’s said injuries and death, to the damage of plaintiff as foresaicl.” Where a complaint in general terms avers negligence, and then avers the particular act or acts constituting the alleged negligence without more, unless such act or acts in themselves amount to negligence, the complaint is demurrable. Neither of the acts averred in the fourth count, whether taken separately or together, can be said, as a matter of law, to constitute negligence, and there is no averment that they are done or performed in a negligent manner.
The second and third assignments of error relate to the action of the court in ovenmiing plaintiff’s demurrers to defendant’s pleas numbered 2 and 3. In both and each of said pleas the defense of contributory negligence is attempted to- be set up, and it sufficiently ap
' While'the second and third counts of the complaint count on negligence of the defendant’s servant after discovery by him of the pei'il of plaintiff’s intestate, they are'none the less counts in simple, negligence. One of the grounds of the demurrer to the second and third pleas, which set up contributory negligence, is to the effect that the negligence counted on in the second and third counts of the complaint was subsequent to the discovery of intestate’s peril, and that same was the proximate cause of his injury. We do not understand the rulé to be that an averment in a complaint that the negligence counted on arose after discovery by the defendant of the peril of the person injured will preclude the defendant from setting up the subsequent negligence of the party injured, which proximately contributed to the injury. The rule is otherwise. See L. & N. R. R. Co. v. Brown, 121 Ala. 221, 25 South. 609; C. of Ga. Ry. Co. v. Foshea, 125 Ala. 199, 27 South. 1006. It may be said to be a universal rule that, to a complaint in simple negligence, contributory negligence may be pleaded as a defense. When, however, contributory negligence is pleaded as a defense to a complaint, which counts primarily for the cause of action on subsequent negligence of the defendant — that is to' say, on negligence occurring after discovery of peril — the plea, in order to be good, should show that the negligent act of the party injured, relied on as a defense, was done or committed by him with a knowledge of his peril. In this respect both of the defendant’s pleas may be. said to be faulty; but the plaintiff’s demurrei failed to reach this objection, though possibly it was intended by the ninth ground of the demurrer to do so. The pleas of the defendant, when construed most strongly against -the
.• Upon the conclusion of the evidence in the case, the court, at the request of the defendant'in writing, gave the general affirmative charge to find for the defendant. This action of the court is assigned as error, and we think it is the principal question in the case. It is to be borne in mind that the negligence counted on.for a right of recovery was negligence of defendant’s servant after discovery by him of the intestate’s peril. The only evidence offered on the trial was that introduced hv the plaintiff, and this evidence without dispute shows that at the time and the place of the alleged injury the defendant was under no'duty to keep a lookout for the deceased. The injury occurred at a place where the tracks of the defendant were fenced in on both sides, and not at or near any public crossing, or within any city, toivn, or village, but in the open country. We think the evidence further clearly shows that the deceased was a trespasser upon the defendant’s, track; and this, without affoiding any fair or reasonable inference to the contrary to- be drawn, by the jury. There is no fact or circumstance in the evidence tending in the ■slightest degree, to show that the deceased, at the time of the injury, was merely in the act of crossing defendant’s tracks and for that reason not a trespasser. On the contrary, the undisputed evidence tends to show that the deceased was not in the act of crossing, the .defendant’s tracks, which, of course, he would have the right to do without becoming a trespasser. The only .evidence bearing upon this question was that of plaintiff’s witness Tom Stone, which was as follows: “On the 10th day of April, 1904, I lived at Wilkes Station on the North Bessemer car line. I came home on the Bessemer car on that car line that night. Several were on the car. I do not know Charles F. Bridgman, but saw him there that night-. He -got off at Wilkes, the same station I did, about half past 12 o’clock at night.. He had ridden from Bessemer, and his .destination was Brighton, which, is Woodward'Crossing. I considered him, drunk. He passed his destination and rode on-to Wilkes Station. The conductor put his hand on his arm, shook
On this evidence, we think it would be the merest guessAvork or conjecture to say that the deceased was,
No reversible error was committed in sustaining the defendant’s objection to the question asked the Avitness Ansley : “Was that a village along there, Mr. Ansley?”
Finding no error in the niling of the court, the judgment appealed from will be affirmed.
Affirmed.