Alabama Power Co. v. Bass

• Decision Date: 06 December 1928
• Docket Number: 7 Div. 790
• Parties: ALABAMA POWER CO. v. BASS.
• Court: Alabama Supreme Court

119 So. 625

218 Ala. 586

ALABAMA POWER CO. v. BASS.

7 Div. 790

Supreme Court of Alabama

December 6, 1928

Rehearing Denied Jan. 24, 1929

Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.

Action for damages for personal injuries by Sarah Bass against the Alabama Power Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

p>Page Knox, Acker, Sterne & Liles, of Anniston, for appellant.

Rutherford Lapsley, of Anniston, and Longshore & Longshore, of Birmingham, for appellee.

BROWN J.

The substance of the averments of the first count of the complaint is that the defendant at the time of plaintiff's injury was engaged in operating a street railway along Fifteenth street in the city of Anniston, Ala and, while plaintiff was standing in close proximity to defendant's car line at a regular stopping place near the intersection of Fifteenth street and Crawford avenue, the defendant, by and through its agent, servant, or employee acting at the time within the scope of his duty and in charge of the operation of a street car, so negligently operated said street car that it was caused to run onto and strike against an automobile then and there crossing the car line and knocked or forced the automobile against plaintiff, inflicting serious and permanent injuries to her person, causing her to suffer mental and physical pain, and to lose time from her employment; "that she suffered such damage and injury by reason of and as a proximate consequence of the negligence of the defendant, as aforesaid."

Count 2, as to inducement, is the same as count 1, with the additional averment that plaintiff was standing at a shed or depot provided for passengers, waiting to embark as a passenger on defendant's street car, followed with like averment as count 1 as to the causation and proximate cause of her injury and damage.

Count 3, as to inducement, is like unto count 2, and in addition avers that "defendant's said agent or servant acting within the line and scope of his duty, then and there operating one of defendant's cars approaching the place where plaintiff was standing knew, or by the exercise of reasonable care should have known, that plaintiff was in the waiting shed in close proximity to the car line, and such agent or servant then and there wantonly, wilfully or intentionally ran said street car on to or against an automobile then and there crossing the car line, and knocked or forced the automobile against plaintiff."

The only objection made to these counts by demurrer, now urged, is that "it does not appear that either defendant or any of its agents, servants or employé's knew that there was a probability that if the street car collided with the said automobile, the said automobile would injure plaintiff."

The argument here is, to quote from the brief: "It will be noted that the complaint does not aver that the street car came in direct contact with plaintiff's body, but only that it caused an automobile so to come in contact with plaintiff. This being so and there being no touching of the plaintiff's body by the instrumentality operated by the defendant, we submit that the injury would not be the proximate result of the negligence alleged, unless the defendant or its agent, servant or employé knew that there was a probability that the collision with the automobile would injure plaintiff."

The fallacy of this argument is apparent. The defendant had no exclusive or paramount right to the use of that part of the street occupied by its tracks, either as against other vehicles or pedestrians. B.R.L. & P. Co. v. Williams, 158 Ala. 381, 48 So. 93. That there was a reasonable probability that it would be used by other vehicles, and it was likewise reasonably to be anticipated that persons would be waiting at this stopping place to embark as passengers on the defendant's cars, or that pedestrians would there be using the streets, as they had a perfect right to do. "The logical rule in this connection, the rule of common sense and human experience as well, *** is that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind." Armstrong, Adm'x, v. Montgomery Street Ry. Co., 123 Ala. 233, 26 So. 349.

It was not necessary, as this argument seems to assume, that the defendant or its servants should be able to foresee the injury in the precise form in which it in fact resulted, or to anticipate the particular consequences which actually flowed from his or their acts or omissions of duty. 22 R.C.L. 125, § 12, note 8, and authorities therein cited. We are therefore of opinion that this ground of demurrer was properly overruled.

The sixth count pleads the existence of a city ordinance fixing the speed limit of street cars at 16 miles per hour, and making it unlawful for any "motorman, conductor or other person to propel or run any street car on, over or across any street within the city limits," at a greater rate of speed than fixed in the ordinance, and avers "that defendant's said agent or servant then and there operating one of defendant's cars approached the place where plaintiff was standing, and acting within the scope and line of his duty, propelled or ran said street car along Fifteenth Street at a higher rate of speed than sixteen miles per hour, to-wit, at the rate of twenty-five miles an hour, in violation of said city ordinance, *** and plaintiff avers that said street car was then and there propelled and run on to and caused to strike against an automobile then and there crossing the car line and knocked or forced the automobile against plaintiff" (inflicting the injury and damage complained of), "and plaintiff avers that she suffered such damage and injuries by reason of and as a proximate consequence of the defendant's agent or servant running said car in violation of the city ordinance, as aforesaid."

Count 7, by like averments as to the causation of plaintiff's injuries and damages, ascribes such injuries to operating the street car in violation of an ordinance making it unlawful "for any person operating or running or having in charge the operation of any electric car on any street railway, to approach and cross any street or avenue without sounding the gong at least twenty feet before entering upon such crossing, and when there are people at or near such crossing, it shall be his duty to sound his gong repeatedly and until they have been advised thereby of the approach of such car," and avers that said injuries and damages resulted "as a proximate consequence of the defendant's agent or servant running said car in violation of the city ordinance, as aforesaid."

The appellant insists that error was committed in overruling grounds 2, 3, and 4 of the demurrer to the sixth count. The argument is, to quote from the brief: "For aught that appears the excessive speed may have had no effective connection whatever with the accident." The quoted averments of the complaint fully answer this argument. These averments not only show that the violation of the ordinance is a cause, but that it was the proximate cause of the injury. The manifest purpose of the ordinance was to protect persons and vehicles in the use of the street from dangers arising from operating street cars at a rate of speed in excess of 16 miles per hour, and its purpose was not only for the protection of these on the street or street car line, but for all who might come within the zone of danger arising from collisions resulting from operating street cars at an excessive rate of speed. Southern Ry. Co. v. Williams, 143 Ala. 212, 38 So. 1013; A.G.S.R.R. Co. v. Chapman, 80 Ala. 615, 2 So. 738; Illinois Cent. R.R. Co. v. Camp, 201 Ala. 4, 75 So. 290.

The counts held defective in Merriweather v. Sayre Mining & Mfg. Co., 161 Ala. 441, 49 So. 916, one alleged that the rock fell and crushed plaintiff's intestate "by reason of the concurrent negligence of said agent," and the other that it fell upon him "as a consequence of said negligence," not the proximate consequence. There is clear distinction between causal connection and proximate cause. Causal connection may appear though the negligent act be the remote and not the proximate cause, but to constitute actionable negligence the plaintiff must not only show causal connection between the negligent act and the injury, but the negligent act must be the proximate cause. Decatur Co. v. Mehaffey, 128 Ala. 255, 29 So. 646; Western Ry. Co. v. Mutch, Adm'r, 97 Ala. 196, 11 So. 894, 21 L.R.A. 316, 38 Am.St.Rep. 179.

Where the act is one of omission, causation is established when the doing of the act would have prevented the result, though the omission of duty might not be the proximate cause. On the other hand, if the result would have happened just as it did, regardless of the omission of duty, the failure to perform the duty is not a factor, and causal connection would not appear.

The averments of the sixth count sufficiently show causal connection between the alleged negligent act of the defendant's servant, and that this negligence proximately caused the injury.

The ordinance pleaded in the seventh count is more narrow in its scope than that upon which the sixth is predicated. The imposed duty here is in respect to persons and vehicles approaching and crossing the tracks of the street railway at a street crossing. Yet, if a failure to observe this duty was a cause concurring with the act of the driver of the automobile, proximately causing plaintiff's...