American Bolt Co. v. Fennell

• Decision Date: 17 December 1908
• Citation: 158 Ala. 484,48 So. 97
• Parties: AMERICAN BOLT CO. v. FENNELL.
• Court: Alabama Supreme Court

48 So. 97

158 Ala. 484

AMERICAN BOLT CO. v. FENNELL.

Supreme Court of Alabama

December 17, 1908

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Ed Fennell against the American Bolt Company. From a judgment for plaintiff, defendant appealed. Affirmed.

Complaint was as follows: "(1) Plaintiff claims of defendant the sum of $5,000 as damages for this, to wit, that heretofore on, to wit, the 15th day of February, 1907, about 5 o'clock in the afternoon, the plaintiff was proceeding on foot on the sidewalk, where he had a right to be, along Thirty-Second street, from First avenue towards Fifth avenue in Jefferson county, Ala., according to the map and plan of the city of Birmingham, and when plaintiff had proceeded a short distance from First avenue he was struck from behind by a team of two mules drawing a heavy dray, owned by the American Bolt Company, in charge of defendant's servant who was driving said team, acting within the line and scope of his duty, whose surname was Howard, but whose Christian name was unknown to the plaintiff. Plaintiff avers that he was knocked down by said team, and run over by the front and rear wheels of said dray, and his leg was broken between the knee and ankle; and plaintiff avers that by reason of the above he suffered great bodily pain, and experienced great physical and mental suffering, and was put to large expense for medicine and medical attention, and the care of the physician in trying to effect a cure, and was confined to his bed; and plaintiff avers that he was knocked down and run over, and his said injuries received by reason of, and as a proximate consequence of, the negligence of defendant's servant in allowing said team to run over plaintiff." (2) Same as 1, down to and including the words "confined to his bed," with this additional averment: "And plaintiff avers that he was so knocked down and run over, and his said injuries received, by reason of, and as a proximate consequence of, the negligence of defendant's servant, in charge of said team, in and about the driving of said team." (4) Same as 1 down to and including the words "confined to his bed," with the following "That plaintiff was knocked down and run over, and received his said injuries, by reason of, and as a proximate consequence of, the negligence of defendant's servant, in charge of said team, in and about the management of said team." "(X) Plaintiff claims of defendant the sum of $5,000 as damages for this, to wit, that on the 15th day of February, 1907, plaintiff was walking along the public highway near the city of Birmingham, Ala., along a street known as Thirty-Second street, near First avenue; that defendant was a proprietor of a dray and two mules, which were then passing along said highway in the possession of one Howard Fowler, defendant's servant, who was driving the team; that said Howard, defendant's servant, acting within the line and scope of his duty, so carelessly drove and managed said mules and dray that by reason of his negligence said mules, or one of them, struck the plaintiff knocking him down, and one of the front and rear wheels of said dray ran over him, or over his leg, and his leg was broken, whereby plaintiff was bruised, and made sick and sore, and confined to his bed and was for a long time prevented from attending to his business, and was put to great expense in endeavoring to be healed of his hurts in the way of medicine and medical attention, and in the employment of a physician, and he suffered great bodily pain, and experienced great physical and mental suffering; and plaintiff avers that his said injuries are of a permanent nature, and that he will be less able to earn money. Plaintiff avers that said negligence of said servant of defendant, said Howard Fowler, proximately caused plaintiff's said injury." Plaintiff amended his first count by inserting before the words "and when plaintiff had proceeded" this clause: "Which said street, at and prior to the time of plaintiff's said injury, was habitually used by the public as a highway, a portion of said streets being for vehicles, and along the same the sidewalk being used by pedestrians."

Demurrers were interposed to the first count, "because (1) that it does not show that defendant violated any duty it owed plaintiff, or that it was guilty of...