Jordan v. Ala. C. G. & A. Ry. Co., 60 So. 309

Jordan v. Ala. C. G. & A. Ry. Co.

60 So. 309 | Ala. | 1912

M;cCLELLAN, J.

-Action for damages resulting from the collision of a street car and the buggy in which plaintiff (appellant) was when injured. The complaint contained two counts; the first charging, in general terms, simple negligence, and the second, wanton or willful injury.

The report of the appeal will contain special pleas 3, 4, and 5, addressed to the first count which purported to set up contributory negligence. Plea 3 was subject to ground 4 of the demurrer. This plea is no stronger than its weakest alternative (Osborne v. Ala. S. & W. Co., 135 Ala. 571, 33 South. 687), viz., ”or negli*296gently so managed or controlled his said horse as to permit said horse to back said buggy on defendant’s said track immediately in front of said moving car.” There is in this alternative averment an entire absence of allegation of fact to which the law could or does attach the imputation of negligence. The effect, the result of the summarily stated negligence of the plaintiff, viz., the permitting of the animal to back the buggy on the track, etc., did not, of course, afford the essential factor in such pleas of the averment of the facts constituting the negligent act or omission sought to be charged thereby. If the plea had omitted this alternative averment, the argument in support of the plea would doubtless be persuasive. What is required to construct a sufficient plea of contributory negligence has been often stated here. The court has all along adhered to the early announced doctrine that such pleas must aver the facts and circumstances constituting the negligence relied on, not the mere conclusion of the pleader, often declaring that the employment of the word “negligently,” or other similar conclusion-expressing words, will not serve as a substitute for allegations of facts and circumstances. — Creola Lumber Co. v. Mills, 149 Ala. 474, 481, 42 South. 1019; Huggins v. Southern Railway Co., 159 Ala. 189, 49 South. 299; Brown v. St. L. & S. F. R. R. Co., 171 Ala. 310, 55 South. 107; Southern Cotton Oil Co. v. Walker, 164 Ala. 33, 48, 49, 51 South. 169; B. R. L. & P. Co. v. Selhorst, 165 Ala. 475, 481, 51 South. 568; Western Railway Co. v. Russell, 144 Ala. 142, 39 South. 311, 113 Am. St. Rep. 24; 6 Mayf. Dig. pp. 669, 670.

Pleas 4 and 5 were, for like reason, subject to the demurrer.

It is insisted for appellant that under Code, § 5476, the burden of proof to negative its negligence for the *297injury complained of rested upon the defendant. The car in collision with which the buggy came was that of a street railway company, being operated in a public street. The statute mentioned does not apply to such companies. — Appel v. Selma St. Ry. Co., 177 Ala. 457, 59 South. 164; Ex parte Selma St. Ry. Co., 177 Ala. 473, 59 South. 169. Hence the trial court did not err in giving, at defendant’s instance, charges 4, 11, and 19. The burden of proof to establish the material averments of at least one of the counts of the complaint was upon plaintiff. He could not recover “if that burden was not discharged.

After stating the correlative rights and duties of streets, it was said in part in Anniston El. Co. v. Rosen, 159 Ala. 195, 202, 203, 48 South. 798, 801 (133 Am. St. Rep. 32) : “The exercise of the common right, by each, must be such as not to unreasonably hinder or endanger either in the use of the street; and upon the operative of the street car rests, as of course, the duty to be diligent in keeping a lookout for persons using the street and to bring to the operation of the car, under such circumstances, such measure of care and prudence as the common rights enjoyed by the traveler and the street car suggest. This necessarily imposes upon the carrier the duty to operate its cars, in public streets, under such speed as that, if persons or property be upon or dangerously near the tracks of the street railway, the car may be, with skillful application of stopping appliances, stopped, and injury thereto averted.” The qualification of these duties is then set down.

Charles 1 and 7, given at the defendant’s instance, each pretermitted, in hypothesis, features of the rules of duty which we have quoted from Rosen’s Case, and which may have been found, on the evidence here, to have been breached with the proximately attending re-*298suit oí injury as complained of. ' Neither of these instructions takes account in its hypothesis of the operative’s observance of the duty to keep, under the circumstances shown, a diligent lookout or of the duty which requires that street cars in public streets should not be operated at such speed as will, in spite of due diligence, prudence, and skill, prevent the averting of injury to person or property upon or dangerously near the track, as defined in Rosen’s Appeal. The legal effect of both instructions was to invade the jury’s province by predicating a finding against the plaintiff upon . circumstances of disfavor to the plaintiff’s right to recover, Avhich, though present, still left under the evidence the basis for a finding in plaintiff’s favor.— Scholse v. S. S. S. & I. Co., 138 Ala. 339, 35 South. 321. Both instructions were therefore erroneously given to the jury.

For like reason charges 8 and- 21, given at defendant’s instance, should have been refused.

There was no error in excluding evidence of the populousness of the territory surrounding or beyond the scene in a public street of the injury.

The second count contained this averment: “Said motorman willfully, Avantonly, or- intentionally propelled said car against plaintiff’s vehicle when he knew that plaintiff would thereby be injured.” The evidence indicated ayos entirely immaterial under either count of the complaint. In eliciting testimony of what the motorman did, and Avhen he did it, in the effect to stop the car, it is at least preferable that the testimony be directed to his acts rather than to a conclusion based thereon or drawn therefrom.

Except as belOAV stated, all of the Justices concur in the opinion, from Avhich a reversal results. But the Chief Justice and Justice de Graffenried entertain *299the opinion that the mentioned evidence of the populousness of the neighborhood of the scene of the injury was material and admissible, and that the court erred in excluding that evidence. They therefore dissent upon that point.

Mayfield, Sayre, and de-Graffenried entertain the opinion that pleas 3, 4, and 5 were good, and were not subject to demurrer. They therefore dissent from the conclusion of the majority that the demurrers to those pleas were erroneously overruled.

Reversed and remanded.