79 So. 513 | Ala. Ct. App. | 1918
The evidence for plaintiff tended to show that he was the owner of certain personal property contained in his residence in the city of Bessemer, Ala.; that the house next to the house in which he lived caught afire; that the alarm was turned in to the city fire department; that the department responded promptly; that the fire truck was a motor truck, which ran very rapidly; that within a few blocks of the house the fire truck was forced to cross the tracks of the defendant at a regular street crossing; that at this crossing the fire truck was stopped by a freight train that had just pulled across the street; that the chief of the fire department attempted to get the trainmen to clear the street so that the truck could proceed to the fire; that the trainmen refused to make any effort to clear the crossing; that the chief of the fire department told the trainmen that the fire truck was going to a fire; that the engineer was sitting in his cab window looking towards the fire truck; that the delay caused by the obstruction was about 4 1/2 minutes; that but for the delay the property of the plaintiff would have been saved from burning.
(1-6) Some of the foregoing facts were denied by defendant's witnesses, thereby presenting an issue for the jury. The first, second, third, fourth, fifth, and sixth assignments of error present the question as to whether or not the appellee was entitled to recover in this case on the evidence presented, and all present the same question. We recognize the principle of law, as expressed in the maxim, "Damnum absque injuria," as laid down in Cooley on Torts, p. 851, and affirmed in the case of L. N. v. Scruggs Echols,
(7-9) If the evidence showed that the matting, rugs, and sewing machine had been only partly paid for, and the seller had retained title until the purchase price was fully paid, the plaintiff did own such a special property in the articles as would authorize an action in his name against a third person for their negligent destruction. Montgomery Gaslight Co. v. M. E. R. R. Co.,
(10) The complaint, which was in one count, omitting the formal parts and the description of the property, was as follows:
"And plaintiff says that a house in which he resided and which contained the personal effects and household furniture of plaintiff at No. 2821 on Twelfth avenue, in said city of Bessemer, caught on fire, and the firemen of the fire department of said city were going to said fire with a large fire truck for the purpose of putting out said fire, and while said firemen with *522 said fire truck were going to said fire along Eighth avenue, a public thoroughfare of said city of Bessemer, one of defendant's said trains extended across and obstructed said Eighth avenue so as to delay for a considerable time the passage of the said firemen and motor truck along said Eighth avenue in their run to said fire, and when said fire was finally reached by said firemen with said truck it was too late to save plaintiff's said personal effects and household furniture, but the same were then and there destroyed by said fire. * * *
"And the plaintiff says that his said damage was proximately caused by the negligence of defendant, in this: That defendant negligently delayed the said firemen with said truck in their passage along said Eighth avenue en route to said fire. And plaintiff says that, except for defendant's said negligent delay of said firemen with said fire truck, the said firemen with said fire truck would have reached said fire quicker than they did, and would have saved plaintiff's said personal effects and household furniture from destruction by said fire, and plaintiff's said damage would have been avoided."
It has become a rule, well settled by numerous decisions of this court and the Supreme Court of this state, so as to need no further discussion, that where the gravamen of the complaint is the alleged misfeasance or nonfeasance of the defendant, it is not necessary to define the quo modo of the negligence complained of. Southern Ry. Co. v. Crawford,
It is alleged in the complaint in general terms that the defendant negligently delayed the firemen with the truck in their passage along Eighth avenue en route to the fire, and this was coupled with an averment that one of defendant's trains extended across said Eighth avenue so as to delay for a considerable time the passage of said firemen, etc. In delivering the opinion in the case of Southern Ry. v. Crawford, supra, Mr. Justice Sayre says:
"Count 4 differs from count 1 only in that it qualifies the allegation that the 'defendant negligently ran an engine' by the additional averment that the engine was run 'at a rapid rate of speed.' "
And he then proceeds to say:
"It is not to be declared defective under the rule that the sufficiency of a complaint in an action for personal injuries which undertakes to define the particular negligence which caused the injury must be tested by the special allegations in that respect. In other words, the allegation that the train was run at a rapid rate of speed is not put in apposition to a general charge of negligence. Rather, the act particularly alleged to have been done is characterized generally as having been negligently done. This characterization supplies every element necessary to make the rapid running of a train negligence."
And again, in the same opinion:
"There are conditions under which it may constitute negligence to maintain a rapid rate of speed in the movement of a railroad train, and those conditions are supplied in the count by the averment that defendant's train was negligently moved at a rapid rate of speed."
We might aptly paraphrase the foregoing reasoning of the learned justice in this opinion as applied to the present complaint. It is alleged that defendant negligently delayed the said firemen with said truck in their passage along said Eighth avenue en route to said fire, which is preceded by an allegation that one of defendant's trains extended across and obstructed the avenue so as to delay the truck for a considerable time. There are conditions under which it may constitute negligence to delay firemen at a street crossing for a considerable time, and those conditions are supplied in the count by the averment that the defendant negligently delayed the firemen, etc.
The reasoning of the justice in the case of Southern Ry. v. Crawford, supra, seems to us both applicable and unanswerable. We therefore hold that the count was not subject to the demurrer. Besides, it will be seen by a reading of the general charge of the court that the judge trying the case so construed the complaint, in that he charged the jury that the complaint alleged that the defendant was guilty of negligence in blocking the crossing for an unreasonable length of time.
For the reasons above stated, the motion for a new trial was properly overruled. We find no error in the record, and the judgment is affirmed.
Affirmed.