Alabama Power Co. v. Gooch

• Decision Date: 29 May 1930
• Docket Number: 8 Div. 132.
• Citation: 128 So. 793,221 Ala. 325
• Parties: ALABAMA POWER CO. ET AL. v. GOOCH.
• Court: Alabama Supreme Court

128 So. 793

221 Ala. 325

ALABAMA POWER CO. ET AL. v. GOOCH.

8 Div. 132.

Supreme Court of Alabama

May 29, 1930

Appeal from Circuit Court, Colbert County; J. Fred Johnson, Jr. Judge.

Action for damages for personal injuries by R. D. Gooch against the Alabama Power Company and Jesse Berry. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

Andrews Peach & Almon, of Sheffield, and Martin, Thompson, Turner &amp McWhorter and Frank N. Savage, all of Birmingham, for appellants.

Nathan Nathan & Nathan, of Sheffield, for appellee.

BROWN J.

The case was submitted to the jury under counts 1, 2, 3, and 4 of the complaint, the plea of not guilty, and the pleas of contributory negligence as to negligence counts, 1 and 3.

Count 2, after stating matters of inducement, avers, "that on to-wit, the 6th day of April, 1928, plaintiff was riding in an automobile on Milton Street in said City of Tuscumbia, the same being one of the paved public highways of said city and crosses the railway then being operated, as aforesaid, by defendants, when defendants wantonly, wilfully, or intentionally ran a street car, so being operated by electricity, against the automobile in which plaintiff was then riding as a guest, with such force," etc. (Italics supplied.)

The averments of count 4 are: "That the defendants wantonly, wilfully, or intentionally operated one of its cars around the curve of its track and on a steep grade approaching the said crossing at Milton Street at such a dangerous and reckless rate of speed that it ran the car, then and there so being operated, against the automobile so being ridden in by plaintiff, with such force," etc.

Count 2 is in trespass charging an affirmative participation by the defendants in the wrongful and damnifying act of propelling the street car against the automobile. City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Chase Nursery Co. et al. v. Bennett, 205 Ala. 202, 87 So. 610; Central of Georgia Raiway Co. v. Freeman, 140 Ala. 582, 37 So. 387; Southern Railway Co. v. Yancey, 141 Ala. 246, 37 So. 341; Birmingham Southern Railroad Co. v. Gunn, Adm'r, 141 Ala. 372, 37 So. 239.

Count 4, which was treated as a wanton count, does not aver that the street car was wantonly run upon or against the automobile in which plaintiff was riding, but that it was wantonly, willfully or intentionally operated along the track and around the curve "at such dangerous and reckless rate of speed, that it ran the car, then and there so being operated, against the automobile." These averments import nothing more than negligence, if that. Southern Railway Co. v. Weatherlow, 153 Ala. 171, 44 So. 1019; Birmingham Railway, Light & Power Co. v. Glover, 142 Ala. 492, 38 So. 836.

The evidence goes to show that the automobile in which the plaintiff was riding at the time of the collision, was being operated by George Saywell, the owner of the automobile; that the collision between the automobile and the street car occurred at the crossing of Milton street in the city of Tuscumbia, between 2 and 3 o'clock p. m. on April 6, 1928. Milton street is a paved thoroughfare, but the most the evidence shows is that said street is considerably used by traffic to and from the western part of Colbert county.

The evidence is without dispute that the motorman had a clear view of the crossing when the street car came within 400 feet of the crossing, and when he discovered the automobile approaching it was within 25 feet...