70 So. 136 | Ala. | 1915
The suit is for damages for the killing of appellee’s cow by a street car, operated by the appellant, on Washington avenue, in Mobile, Ala. The complaint consisted of four counts. The second count, as amended, charged negligence to appellant’s servants in the killing of the cow “after discovering it trying to cross said track;” the first and fourth counts charged wantonness. Appellant’s demurrer to count 3 was sustained, and that to the fourth count was overruled. There were no demurrers to the first count.
Appellant’s demurrer thereto was: “Because it does not show any duty on the part of the defendant towards the plaintiff not to be guilty of negligence in the operation of its said car.”
In Birmingham Railway, Light & Power Co. v. Barrett, 179 Ala. 274, 60 South. 762, Mr. Justice Somerville says: “Where the complaint merely states the fact and res gestae of the injury, not imputing the defendant’s negligence to them, and without specifying the negligent acts or omissions relied on, a general averment. * * * is sufficient.” — Bryant v. A. G. S. R. R. Co., 155 Ala. 368, 46 South. 484; B. R., L. & P. Co. v. Gonzales, 183 Ala. 273, 61 South. 80.
The count was a general averment of the facts that caused the injury, and that the injury was the proximate result of defendant’s negligence. The trial court committed no error in overruling defendant’s demurrer to the fourth count of the complaint.
The motion was no doubt intended to raise the question of the right to test the sufficiency of the evidence by a motion to exclude all the evidence, rather ¡than by a demurrer to the evidence. The motion to exclude is not embarrassed with admissions; while the demurrer to evidence admits the truth of the evidence, and of every inference and conclusion which a jury could legally deduce therefrom, and submits to the court the determination of the issue of fact between the parties as well as the law. — Code 1907, § 5343; 6 Mayf. Dig. 373, § 102; Martin v. State, 62 Ala. 240; Gluck v. Cox, 90 Ala. 331, 8 South. 161; Cent. R. & B. Co. v. Roquemore, 96 Ala. 236, 11 South. 475; Curtis v. Daughdrill, 71 Ala. 590; Armstrong v. Armstrong, 29 Ala. 541; Foster v. McDonald, 5 Ala. 376; McGehee v. Greer, 7 Port. 537.
In Young v. Foster, 7 Port. 423, for the first time in this state the demurrer to the evidence was considered, and Mr. Justice Ormond declared that the court will not compel joinder unless the demurrant will admit on the record the truth of all the facts offered in evidence, and also every conclusion which the facts fairly conduce to prove.
In Gayle v. Cahawba & Marion Railroad Co., 8 Ala. 587, the court said: “When evidence is objected to in the mass, as in this case, the objection will not be permitted to be taken in this court, so as to subject particular portions of it to a severe and searching criticism. * * * The objection, when made in this general form, to all the testimony, is calculated to mislead, and ought as far as possible to be discouraged, unless it be in fact a demurrer to the evidence, by analogy to which alone indeed can this motion be sustained.”
In Boyd v. Gilchrist, 15 Ala. 849, Chief Justice Collier treats the motion made to the sufficiency of the evidence as a demurrer, and adds that: “All presumptions which a jury might legitimately draw against a party should be made against one who demurs to the evidence, and thus withdraws his case from them.”
In Bryan v. State, 26 Ala. 65, Mr. Justice Goldthwaite says, on this question: “If the defendant believes that the facts which
Again, in Curtis v. Daughdrall, 71 Ala. 590, Chief Justice Brickell affirms: “The well-defined rule of the common law that if parties voluntarily substitute the court for the jury, the court must render judgment against the party inviting it into the relation and province of the jury,” etc.
We have adverted to the early judicial history of the demurrer to the evidence that later took shape in our statute to show that the party invoking the aid of the court to pass upon the sufficiency of his adversary’s evidence withdraws his cause from the consideration of the jury, and substitutes the court as the judge of the facts under the law. That a trial court, on motion, may exclude all of the plaintiff’s evidence when he has failed to establish a prima facie case has been affirmed by this court (M., J. & K. C. R. R. Co. v. Bromberg, Adm’r, 141 Ala. 258, 283, 37 South. 395); yet it has never been held that the trial court, on motion, can thus be compelled to pass upon the sufficiency of the evidence, or that its refusal is subject to review by this court. To so hold would substitute the motion to exclude all the evidence, for the demurrer to the evidence.
In Bromberg’s Case, supra, it is declared: “Where the evidence of the plaintiff fails to make a prima facie case, the motion to exclude would be proper, and this upon the idea of its immateriality.”
In Scales v. C. I. & C. Co., 173 Ala. 639, 55 South. 821, there was a divided court, and Mr. Justice Simpson said: “In regard to the exclusion of the evidence on the part of the plaintiff, whether we follow the cases which hold that this is a proper proceeding, when the plaintiff has failed to make out a prima facie case, or adopt the suggestion in one of our cases that if it be a case in which the general charge could be properly given, it is error without injury, it matters not; the result being the same.”
in his opinion, clearly shows that the result is not the same, but that the plaintiff is deprived of his right to have the court pass upon the sufficiency of all the evidence, and is often driven to an involuntary nonsuit and the
In McCrary v. Sharpe, 188 Ala. 375, 66 South. 441, Mr. Justice McClellan said: “There being evidence introduced, admitted, in support of material averments of all the counts of the amended complaint, and after plaintiff had concluded the presentation of her evidence, the trial court sustained a defendant’s motion to exclude all of the evidence so admitted. Thereupon, in response to evident necessity, the plaintiff took a nonsuit with a bill of exceptions. Patently this was error. The question of the sufficiency of the evidence, fully concluded by the plaintiff, to sustain the burden of proof assumed by the plaintiff in his complaint can only be properly presented by the defendant in one of two ways viz.: (a) Demurrer to the evidence; or (b) the request of the affirmative charge.”
The exclusion on motion of the plaintiff’s testimony is condemned, whether considered in the light of the reason for the demurrer to the evidence, or of the manifest injustice to drive a plaintiff to an involuntary nonsuit. Under our system of jurisprudence an involuntary nonsuit is not permitted. — Smith v. Seaton, Minor, 75; Phillips v. Jordan, 3 Stew. 38; Leavitt v. Dawson, 4 Ala. 335; Hunt v. Stewart, 7 Ala. 525; Saunders v. Coffin, 16 Ala. 421; Smith v. Wooding, 20 Ala. 324; Tate v. McCrary, 21 Ala. 499. We do not wish to be understood as holding that the action of a trial court in excluding the evidence on motion would be reversible error, if there was no evidence to support the plaintiff’s case.
5. The question of defendant’s failure vel non to use proper diligence to avert injury to plaintiff’s animal, after discovering it trying to cross the track, was a question for the jury. Charges 1, 2, 4, and 6, precluding this inquiry, were properly refused.— 6 Mayf. Dig. 310; Carlisle v. A. G. S. R. R. Co., 166 Ala. 591, 52 South. 341; Johnson v. B. R., L. & P. Co., 149 Ala. 529, 43 South. 33; B. R., L. & P. Co. v. Jung, 161 Ala. 461, 49 South. 434, 18 Ann. Cas. 557; M. & B. R. R. Co. v. Ladd, 92 Ala. 287, 9 South. 169.
Affirmed.