Armour & Co. v. Alabama Power Co.

• Decision Date: 11 November 1919
• Docket Number: 7 Div. 587
• Citation: 17 Ala.App. 280,84 So. 628
• Parties: ARMOUR & CO. v. ALABAMA POWER CO.
• Court: Alabama Court of Appeals

84 So. 628

17 Ala.App. 280

ARMOUR & CO. v. ALABAMA POWER CO.

7 Div. 587

Court of Appeals of Alabama

November 11, 1919

On Rehearing December 16, 1919

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Action by Armour & Co. against the Alabama Power Company for damages to an automobile in a collision with a street car. Judgment for defendant, and plaintiff appealed. Reversed and remanded.

Count 2 of the complaint is as follows:

The plaintiff claims of the defendant the sum of $200 as damages for that, whereas, on or about, to wit, the 7th day of July, 1916, the defendant, through its agent or agents, or servant or servants, was operating a street car by means of electricity upon a railway over and along one of the public streets in the city of Anniston, Ala., to wit, Fifteenth street at or near its intersection with Cooper avenue in said city, for the transportation of passengers for hire or reward, and plaintiff avers that on said date and occasion and at such place its servant or agent was traveling along said street in an automobile, the property of the plaintiff and was rightfully using said street at the time and place aforesaid. And plaintiff avers that, while its agent was thus using the said street, the said agent or agents, servant or servants, of the defendants, acting within the line and scope of his or their authority, "wantonly, willfully, or intentionally" caused or allowed said street car to collide with said automobile, which was being so driven by the said agent of this plaintiff, with great force and violence, and as a proximate consequence thereof the plaintiff's said automobile was torn up, broken, and wrecked, resulting in its damage to an extent of $200; hence this suit.

The demurrers filed were as follows:

(1) It does not appear how defendant's servant could be guilty of willfully allowing a car to strike the automobile of plaintiff.

(2) No facts are stated showing that defendant's agents or servants were guilty of wantonly or willfully or intentionally injuring plaintiff.

(3) To willfully allow said car to strike plaintiff's automobile would not be actionable.

The other facts sufficiently appear from the opinion of the court.

Ross Blackmon, of Anniston, for appellant.

Knox Acker, Dixon & Sterne, of Anniston, for appellee.

MERRITT J.

Count 2 of the complaint was good against the grounds of demurrer. Counts claiming damages for wanton or willful acts, are sufficient when they allege that the injury was wantonly or willfully inflicted by running a train, car, or engine against plaintiff or his property, and it is not essential that they set out the evidence necessary to show that the given act was wanton or willful. Birmingham R., L. & P Co. v. Johnson, 183 Ala. 355, 61 So. 79; Southern R.R. Co. v. Weatherlow, 153 Ala. 171, 44 So. 1019; Martin's Case, 117 Ala. 367, 23 So. 231; Burgess' Case, 114 Ala. 587, 22 So. 169; Southern R.R. Co. v Hyde, 183 Ala. 346, 61 So. 77.

The demurrer to pleas A and B should have been sustained. Pleas of contributory negligence do not constitute legal justification for the intentional or wanton injury or negligence of the defendant.

There was no error in sustaining defendant's objection to the question propounded to the witness J.M. Bagley, "You say that all indications showed that it was a side sweep?" This witness had already testified to exactly this fact without objection. Neither was there error in allowing the witness Taylor to answer the question, "Suppose a man coming down in an automobile intended to turn out that way?" This was on cross-examination in rebuttal of the witness' testimony as to custom.

We are of the opinion that the trial court was in error in giving the general affirmative charge at the request of the defendant. While the testimony is without conflict in many respects, yet there were diverging tendencies which should have been left to the jury to pass upon. The general affirmative charge should never be given whenever there is any evidence or a reasonable inference in opposition to the same. John v. Birmingham Realty Co., 172 Ala. 604, 55 So. 801; Birmingham Light & Power Co. v. Livingston, 144 Ala. 316, 39 So. 374; Birmingham L. & P. Co. v. Williams, 158 Ala. 381, 48 So. 93.

The opinion of the Court of Appeals in the case of Birmingham R., L. & P. Co. v. Camp, 2 Ala.App. 649, 57 So. 50, is to us conclusive of the proposition that the trial court was in error. If there is any evidence which would support an inference that would hinder the defendant's right to recover, an instruction to find for the defendant if the jury believed the evidence should not be given. W.U. Tel. Co. v. Louisell, 161 Ala. 231, 50 So. 87.

If there is any evidence which tends to establish the plaintiff's cause, the court should not withdraw the case from the jury or direct a verdict. It is not for the court to judge the sufficiency of the evidence, or to decide which of conflicting tendencies of the evidence should be adopted by the jury. Tobler v. Pioneer Mfg. Co., 166 Ala. 517, 52 So. 86; Amerson v. Corona Coal & Iron Co., 194 Ala. 175, 69 So. 601.

The reporter will set out fully all the facts in the case.

The judgment of the circuit court will be reversed and remanded.

Reversed and remanded.

On Rehearing.

We have given the most careful consideration to the insistence of the appellee in its able brief and argument that the action of the trial court should be upheld in the giving of the affirmative charge, but we are unable to arrive at any other conclusion than that stated in the opinion that, "while the testimony is without conflict in many respects, yet there were diverging tendencies which should have been left to the jury to pass upon."

Under the first count of the complaint alleging negligence in general terms, it was permissible to prove subsequent negligence, and if the defendant's motorman, after discovering the plaintiff's peril failed to use the highest degree of care to avoid injuries, it would be guilty of subsequent negligence. L. & N.R.R. Co. v. Calvert, 170 Ala. 571, 54 So. 184; L. & N.R.R. Co. v. Abernathy, 192 Ala. 629, 69 So. 57.

The injuries complained of in this case occurred at the intersection of Cooper and Fifteenth streets in the city of Anniston, which was a main street. The defendant's motorman testified that people crossed the street, at the point where the...