87 So. 181 | Ala. | 1920
The suit was for damages, the result of collision between a street car and an automobile at a crossing of two streets in a populous section of the city of Mobile.
The complaint contained counts for simple negligence and for the willful and wanton conduct of defendant's agents operating the street car. Defendant's pleas were the general issue to the entire complaint and of contributory negligence to the first count. Demurrer was sustained to plea 2, and overruled to plea 3, as last amended. The reporter of decisions will set out this plea.
The effect of our decisions is not that the defendant must use the word "negligently" in a plea of contributory negligence, but that the facts pleaded as a defense must show a negligent act that contributed to the damage or injury of which complaint is made. It must be admitted that there is some confusion in our decisions as to the effect of the use of the word "negligently" in a plea of contributory negligence. For illustration, in United States Cast Iron Pipe F. Co. v. Granger,
The plea dealt with in B. R., L. P. Co. v. Fox,
It is beyond question that, when the facts alleged in a plea of contributory negligence show that the act attributed to plaintiff and preventing his recovery was negligence per se on his part and contributed to his injury, it is unnecessary to allege that such act was negligently committed, done, or permitted by plaintiff. Dwight Mfg. Co. v. Holmes, supra; B. R., L. P. Co. v. Yates,
"It is the duty of a traveler on a public street over which street cars are operated 'to look for an approaching car, and, if the street is obstructed, to listen, and in some instances to stop.' "
See B. R., L. P. Co. v. Oldham,
This is as far as our court has gone. The "stop, look, and listen" rule, as applied to persons about to cross or go upon the track of a steam railway, has not been fully applied to pedestrians or those driving along or across a public street in a city on which is imbedded a street railway line. If such pedestrian or driver of vehicle cannot see, it may be his duty to listen; if he cannot hear, it may be his duty (depending upon the circumstances of each case) to stop. The whole burden of stopping, looking, and listening, as a matter of law (in every case), has not been placed on a pedestrian or driver of a vehicle upon or crossing a public street in a city, town, or village as regards street cars being propelled thereon.
The plaintiff examined the witness Clyce Orso by reference to a picture of the locus in quo of the collision, which has not been embraced in the bill of exceptions. These references were such as to involve a contradiction in the bill of exceptions, reciting that it contains all the evidence. L. N. R. R. Co. v. Jenkins,
The case went to the jury on the willful and wanton count, and, whatever may be said of written charge 5, given at the request of defendant, it was erroneous as applied to the evidence under the willful and wanton count. The motorman might have been guilty of wantonness or willfulness in the manner of his approach to said crossing, although as soon as he saw that the automobile would not stop or turn off in time to avoid the collision he might have done everything possible that the most skilled and efficient motorman could have done to avoid the collision. A similar charge was refused in B. R. E. Co. v. Jackson,
For the error in overruling demurrer to plea 3 as last amended, and for the giving of defendant's written charge 5 under the willful and wanton count, the judgment of the circuit court will be reversed, and the case remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.