51 So. 340 | Ala. | 1909
Appellee sued for injuries to Ms person and property sustained by collision with an engine at a public road crossing. Count 1 alleges that the defendant by its servants negligently ran an engine towards the pike along which plaintiff was driving, thereby causing plaintiff’s team to become- frightened and run across the track in front of the engine, where it was - struck, with the result complained of. It has become too well established by repeated decisions to need further discussion that, where the gravamen of the complaint is the alleged misfeasance or nonfeasance of another, it is not necessary to define the quo modo of the negligence; the reasonable theory being that the defendant is best informed as to the particulars of his own dereliction.- — L. & N. R. R. Co. v. Marbury, 125 Ala. 237, 28 South. 438, 50 L. R. A. 620; Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 South. 349.
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.” 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 supplying every element necessary to make the rapid running of a train negligent. Thus, to illustrate from our adjudicated cases, it has been held that the mere allegation that a passenger is injured by the sudden jerk of a car does not show actionable neg
Count 2 does not charge that the operation of the enginp immediately at the crossing Avas unusual or in any respect negligent. The negligence upon which the count goes is to be inferred from the failure of the engineer to blow the Avhistle or ring the bell at least one-fourth of a mile before reaching the pike, “in consequence of which failure,”' the count continues, “plaintiff approached the crossing Avithout warning of the danger.” This count, in common with the others, alleges that the plaintiff’s team became frightened and ran upon the track in front of the engine. The duty to blow the Avhistle or ring the bell before reaching a public road crossing is imposed by statute, and it must be conceded that a mere failure constitutes negligence.- — ■ Code 1907, § 5473; Code 1896, § 3440. But, in order for negligence to confer a right of action, it must be the efficient proximate cause of injury. The statute (Code 1907, § 5476; Code 1896, '§ 3443) make railroad companies liable for all damage done to. persons, or to stock
Pleas 9 and 10 predicate contributory negligence of the plaintiff for that under the circumstances there averred he failed to go to the head of his team and thus control it. Whatever may have been the duty of the plaintiff in respect to stopping, looking, and listening —a feature of the case fully covered by other pleas upon which issue was joined — it cannot be said that the duty of quitting his- place in his vehicle and going to the head of his team, in order that he might be in a better position to control it, devolved upon him until he became aware of the approach of the train. These pleas fail to aver plaintiff’s knowledge of the approach of the engine, and were defective for that reason. The demurrers to them were properly sustained.
There was no evidence of any negligence in the operation of the engine in the immediate vicinity where the
Beversed and remanded.