Alabama Power Co. v. Stogner

• Decision Date: 14 December 1922
• Docket Number: 8 Div. 347.
• Citation: 95 So. 151,208 Ala. 666
• Parties: ALABAMA POWER CO. v. STOGNER.
• Court: Alabama Supreme Court

95 So. 151

208 Ala. 666

ALABAMA POWER CO. v. STOGNER.

8 Div. 347.

Supreme Court of Alabama

December 14, 1922

Rehearing Denied Jan. 25, 1923.

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

Action by H. H. Stogner against the Alabama Power Company, for damages for wrongful death of his infant son. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Thomas J., dissenting.

Spragins & Speake, of Huntsville, and Perry W. Turner, of Birmingham for appellant.

R. E. Smith and C. L. Watts, both of Huntsville, for appellee.

THOMAS J.

This was an action by appellee for recovery of damages for the alleged wrongful killing of Willie Stogner, his four year old son, brought under the provisions of section 2485 of the Code of 1907. The first count of the amended complaint ascribed the death to simple negligence of defendant's servants, agents, or employés in operating one of defendant's street cars. The second count ascribed said death to a wanton act. Demurrers to the complaint as amended were overruled. The court gave the affirmative charge for the defendant as to count 2. Defendant filed a plea of not guilty, and pleas 2 to 7, inclusive, alleging contributory negligence of the father.

The injury occurred at 9 o'clock at night in the city of Huntsville, on West Clinton street, along and on which defendant's track was laid, at the grade of the street. This street runs east and west, and is paved with brick between and outside the rails of the street car track. The accident occurred at the place specifically indicated in amended count 1, and about opposite the plaintiff's home, which was located on the south side of said street. Plaintiff, his wife and two children had just alighted from their automobile on the north side of the street, and the mother, with a younger child, had crossed the street, and was near the steps of their home when the child that was killed started across the track, was struck and injured by a street car of defendant approaching from the west, the child dying a few hours after such injury. Plaintiff's evidence showed that after he (the father) drove his car up to and stopped at the curb at a point on the north side of the street car track his wife and children alighted and crossed, or attempted to cross, the street car track to the south side, when decedent was killed. Plaintiff, having alighted from his automobile, went around in front to the right-hand side thereof to get something out of his vehicle. As a witness the plaintiff testified:

"When I noticed Willie Stogner he was leaving the car. He walked to the left, *** then he came around in front of the car to look at the lights. At that time I was getting the groceries out of the car, and he was there noticing the lights. The next thing I noticed of him he had gotten as far as the rail of the track. I heard a car coming, and I said 'Hurry on, son; there is a car coming.' I thought he had gone on, but in the meantime I noticed that a car was approaching, and instead of him going on he stopped perfectly still over the first rail of the street car line facing me. *** I went around the front of my car, and came back in the direction (indicating east) from my car. I wasn't running, but I was moving pretty peart. The car was

30 or 40 feet from the boy when I saw him standing on the track. I ran to where my boy was. I reached out to get him, and just touched his overcoat sleeve, and the car hit me and knocked me over by my car."

The motorman testified:

That when he first saw the boy he was running from an automobile straight across the car line; that "my car was something like 10 or 12 feet from him at that time; *** he was still on that part of the street the track was not on. He continued until he got to the track. When I first saw him I rang the bell and tightened down my brakes, and made every effort I could to stop the car, but I was so close to him that I could not stop before I hit him. I reversed the car and tightened my brakes. The light on that car was burning bright *** and the brake on the car was in good fix."

Further: That the car ran about 75 feet after it struck the boy before it was stopped, and that the car wheels did not run over the boy, but pushed him along.

The only passenger on the street car testified that the car came to a sudden stop, and ran about 25 feet after striking the boy. The street was straight for a considerable distance west of the point of the accident, and in the direction whence the street car approached. The child was taken from under the front wheel of the street car at a point 160 feet (according to the evidence of plaintiff's witnesses) east of where he was struck. There was material conflict in the evidence as to the speed of the car and as to whether the headlight was burning. B. & A. R. Co. v. Campbell, 203 Ala. 296, 299 (9, 10), 82 So. 546.

The simple negligence count as amended relied upon the negligence of an employé-"defendant's servants, agents, or employés, in control or operating one of defendant's cars aforesaid over and along said railway." Its averments, when considered as a whole, as they must be (N. A. R. Co. v. Mitchell, 205 Ala. 448, 88 So. 558; L. & N. R. Co. v. Johnson, 162 Ala. 665, 50 So. 300), are of the following facts at the time and place of the injury:

(1) That defendant owned and operated a street railway along the designated street in the city of Huntsville, and which "railway was laid upon and at the grade of said street;" (2) that "defendant did own and operate on and over said railway, and on and over that part of said railway (describing specifically the point of the injury) cars propelled by electricity, for the purpose of carrying passengers for hire;" (3) that, while Willie Stogner, four year old infant of the plaintiff, was crossing said street and railway at the point averred, "the defendant's servants, agents or employés, in control or operating one of defendant's cars aforesaid over and along said railway, did so negligently control or operate the same as to propel the same against the said Willie Stogner, and as a proximate result of said negligence caused his death, to the damage of the plaintiff as aforesaid."

A ground of demurrer was:

"It does not appear therefrom that the said agents, servants or employés were acting within the scope of their employment."

The same was not efficacious for the reason stated in L. & N. R. Co. v. Johnson, supra. The allegations of fact contained in the whole count were:

That "defendant's servants, agents and employés in control or operating one of defendant's cars aforesaid over and along said railway did so negligently control or operate the same so as to propel the same against the" intestate, and unmistakably refer to car or cars owned and operated by defendant over the railway at the time and place indicated in said city "by electricity, for the purpose of carrying passengers for hire," etc., and by defendant corporation engaging in the business of operating "a street railway through and along certain streets and alleys and highways of the city of Huntsville," etc.

The requirement of allegations that the damnifying act was within the range and scope of the employment of the agent while he was engaged in performing the service for the master and for which he had been employed or to which he had been assigned by due authority, was met by the facts averred in L. & N. R. Co. v. Johnson, supra. It was there recognized that, in order for a principal to be charged with liability for a tort committed by his agent, it is incumbent upon a plaintiff to aver and prove that the act or omission complained of occurred or was done under such circumstances as to render the master or principal liable for it; and it was stated that "there are no patented words for charging the misconduct imputed to have been committed or omitted 'within the scope of the servant's employment,"' it being declared that the averment of a complaint, when read as a whole, is sufficient if the facts averred "show that the agent, when committing the wrong, bore such a relation to the defendant as to render the latter liable for the misconduct complained of." This was a due application of the cardinal rules of pleading requiring that a cause of action be made of a duty and its breach; that is, required to be so stated as that the relationship from which the duty springs is shown by the facts alleged. The breach of duty may be averred by way of a conclusion. Ala. F. & I. Co. v. Bush, 204 Ala. 658, 86 So. 541; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; L. & N. R. Co. v. Johnson, supra; Tucker v. Graves, 17 Ala. App. 602, 88 So. 40.

It may be said in passing that the application of the rule of pleading on which was rested the ruling on complaint in L. &amp N. R. Co. v. Johnson, supra, is not in conflict with Wise v. Curl, 177 Ala. 324, 58 So. 286, a case against a sheriff and his deputies for wrongfully shooting plaintiff's intestate; Addington v. Amer. Casting Co., 186 Ala. 92, 64 So. 614; T. C. I. & R. Co. v. Rutledge, 196 Ala. 59, 71 So. 990, for assault and battery in removing plaintiff from defendant's premises; Morrison v. Clark, 196 Ala. 670, 72 So. 305, for wanton act of collision on highway; Ala. Power Co. v. Conine, 207 Ala. 435, 93 So. 22-and was a proper application of the rule recognized and applied to counts in said cases. In Addington v. Amer. Casting Co., supra, the instrumentality averred to have been employed in the alleged agency was a wagon and team that could be driven anywhere by the person who happened to be the defendant's agent, and may or may not have been employed in the master's business at the time of the collision. The count condemned (3) in Ala. Power Co. v. Conine, supra, charged that wires...