Alabama Power Co. v. Armour & Co.

• Decision Date: 27 October 1921
• Docket Number: 7 Div. 219.
• Citation: 92 So. 111,207 Ala. 15
• Parties: ALABAMA POWER CO. v. ARMOUR & CO.
• Court: Alabama Supreme Court

92 So. 111

207 Ala. 15

ALABAMA POWER CO. v. ARMOUR & CO.

7 Div. 219.

Supreme Court of Alabama

October 27, 1921

Rehearing Denied Nov. 24, 1921.

Appeal from Circuit Court, Calhoun County; J. J. Curtis, Judge.

Action by Armour & Co. against the Alabama Power Company, for damages for injury to an automobile in collision. Judgment for the plaintiff, and the defendant appealed. Transferred from Court of Appeals under Acts 1911, p. 449,§ 6. Reversed and remanded on rehearing.

McClellan Gardner, and Miller, JJ., dissenting.

Knox Acker, Sterne & Liles, of Anniston, for appellant.

Ross Blackmon and J. B. Holman, Jr., both of Anniston, for appellee.

MILLER J.

Armour & Co. bring this suit against the Alabama Power Company for damages for injuries to an automobile of plaintiff's in collision with a street car belonging to defendant. There was judgment of the court on verdict of the jury in favor of the plaintiff for $74.91, and defendant appeals.

On former appeal it was in the Court of Appeals. Armour &amp Co. v. Ala. Power Co., 17 Ala. App. 280, 84 So. 628.

The errors from 1 to 9, insisted on by appellant, are based on the court refusing to hold a plea of set-off good, and contributory negligence pleas good, against a wanton count. The set-off claimed grows out of the same collision alleged in the complaint. This plea sets up and claims damages to the street car of the defendant by alleged contributory negligence of the plaintiff. The court sustained demurrers to these pleas of set-off and contributory negligence to the wanton count of the complaint. In this there was no error.

The defendant by one of these pleas attempts to set off its damages to its street car, growing out of an alleged contributory negligence act of plaintiff, against the wanton act of defendant, damaging the automobile of plaintiff. A contributory negligence plea is no answer to a wanton act charged in a complaint; and those pleas setting up contributory negligence of plaintiff to the wanton count were subject to the demurrer. So. Ry. Co. v. Yancey, 141 Ala. 246, 37 So. 341. There must be two demands, one of plaintiff and one of the defendant, for the law of set-off to have application. These demands must be mutual, subsisting between the parties at the commencement of the suit for one to set off the other. If the demands of each grow out of a collision, as in this case, caused by the alleged contributory negligence of plaintiff and alleged wanton negligence of the defendant, the wantonness of the defendant overshadows and consumes the negligence of the plaintiff, and creates by their joint negligent and wanton acts, respectively, two damages for which there is in law only one legal demand. This legal demand is for plaintiff's damages for the injuries to the automobile caused by the averred wanton act of defendant, for which the averred contributory negligence of plaintiff is no legal defense, and the damages to its street car can therefore be no legal demand to set off this demand of plaintiff. The demands or rights of action of each must be simultaneous; they must exist at the same time. These two alleged injuries cannot each have a legal existence and each be legal demands at the same time. So. Ry Co. v. Yancey, 141 Ala. 246, 37 So. 341; St. L. & Tenn. River P. Co. v. McPeters, 124 Ala. 451, 27 So. 518; section 5858, Code 1907.

Written charge No. 1, asked by plaintiff, was given by the court. The words "even though" therein did not render its giving reversible error. The case of L. & N. R. R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103, based on Miller's Case, 107 Ala. 40, 19 So. 37, cited therein, involved a charge refused by the trial court, and the ruling was justified; but the court did not there hold that the giving of said charge would be reversible error. Cent. of Ga. Ry. v. Ellison, 199 Ala. 571, 75 So. 159. The court gave this written charge at the request of the plaintiff:

"(2) I charge you, gentlemen of the jury, that the defendant's motorman owed the plaintiff's agent the duty to have sounded the gong on the street car at the time and place of the accident or injury, and if you find that he negligently failed to do so, and this negligence proximately caused the injury, then the defendant would be liable."

The undisputed evidence showed that the motorman of the street car saw the running automobile, saw the danger and peril to the car and the automobile before the collision, and the street car was running, and he did not sound the gong. This undisputed evidence made it his duty to devote his energies to sounding the gong and using his brakes and other agencies for stopping his engine and preventing the injury. This undisputed evidence rendered the first part of the charge correct. L. & N. R. R. Co. v. Mitchell, 134 Ala. 261, 32 So. 735; L. & N. R. R. Co. v. Young, 153 Ala. 232, 45 So. 238, 16 L. R. A. (N. S.) 301.

The evidence for plaintiff tended to show that the motorman "after seeing and so realizing the danger *** had time to have sounded his gong and thereby prevented the accident." The testimony of the motorman tended to show in substance:

"That from the time he saw the automobile until the automobile struck the street car, he only had time to bring the car to a standstill, and step back out of the way of flying glass."

Under this disputed evidence the court properly instructed the jury in the charge stating:

"If you find that he negligently failed to do so [sound the gong] and this negligence proximately caused the injury, then the defendant would be liable."

It was for the jury to declare whether the motorman had time to sound the gong, whether he was guilty of negligence in failing to do so, and whether he should exercise his agencies in stopping the car or sounding the gong or both. This issue was for the jury to settle. This charge so left it. L. & N. R. R. Co. v. Young, 153 Ala. 232, 45 So. 238, 16 L. R. A. (N. S.) 301; L. & N. R. R. Co. v. Mitchell, 134 Ala. 261, 32 So. 735; Appel v. Selma St. & S. R. Co., 177 Ala. 472, 59 So. 164. This charge was misleading, but the trial court will not be put in error for giving it as the defendant could have asked and had the court give an appropriate explanatory charge. It did not do so, and cannot complain. Phillips v. Gaither, 191 Ala. 87, 67 So. 1001.

Charge 1 refused defendant by the court is the general affirmative charge. In this case all material issues are in direct conflict by positive evidence or reasonable inferences therefrom, and therefore this charge could not be given by the court. John v. B'ham Realty Co., 172 Ala. 604, 55 So. 801.

Charge 2 is on set-off plea of defendant. The court did not err in refusing it. It called for verdict for defendant on plea of set-off, if the driver of plaintiff's automobile was guilty of negligence which proximately caused the damage to the street car. It ignores the wanton count of the complaint and the evidence tending to sustain it. So. Ry. Co. v. Yancey, 141 Ala. 246, 37 So. 341; St. L. & T. R. P. Co. v. McPeters, 124 Ala. 455, 27 So. 518.

Charges 4 and 5 of defendant, refused by the court, invade the province of the jury. These were...