Birmingham Elec. Co. v. Carver

• Decision Date: 22 February 1951
• Docket Number: 6 Div. 166
• Citation: 255 Ala. 471,52 So.2d 200
• Parties: BIRMINGHAM ELECTRIC CO. v. CARVER.
• Court: Alabama Supreme Court

Page 200

52 So.2d 200

255 Ala. 471

BIRMINGHAM ELECTRIC CO. v. CARVER.

6 Div. 166.

Supreme Court of Alabama.

Feb. 22, 1951.

Rehearing Denied April 26, 1951.

Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.

Clifford Emond, of Birmingham, for appellee.

FOSTER, Justice.

The primary contention made on this appeal is with respect to a charge of contributory negligence given for defendant. The suit is for personal injuries received by plaintiff in collision of plaintiff's automobile with a bus owned by defendant on a street in Birmingham.

The suit was submitted on count 'A', a simple negligence count and 'B' a wanton count. The pleading was in short by consent. There was a verdict and judgment for defendant, and a new trial was granted. This appeal is from the judgment granting the new trial.

The charge of contributory negligence is in the following language: 'If you are reasonably satisfied from the evidence in this case that plaintiff was himself guilty of negligence which proximately contributed to cause his injuries and damages on the occasion complained of, you cannot return a verdict for the plaintiff under count A of the complaint.' Consideration of this charge will be given on the assumption that the evidence made a question for the jury as to the subsequent negligence of defendant. The specific inquiry is whether such a charge of contributory negligence is applicable to a count which includes subsequent negligence and there is evidence from which subsequent negligence may be found by the jury.

In order to analyze that question, it is necessary for us to go back to the basic principle on which a count merely charging simple negligence on the part of the defendant may be sustained by proof of subsequent negligence in a proper case. The proper case is that the subsequent negligence of the defendant is a proximate contributing cause of the injury and damages to the plaintiff. For in that event, negligence being shown, it matters not whether it is primary negligence or subsequent negligence in so far as the duty of the plaintiff to prove negligency by the defendant is concerned. The reason why subsequent negligence may be shown in such a count is because the count alleges that the negligence of the defendant was the proximate cause of his injury. Mobile Light and Railroad Co. v. Gadik, 211 Ala. 582(4), 100 So. 837. It may be the proximate cause whether it is primary or subsequent. Therefore it is included in the complaint.

We come to the question of what contributory negligence is an answer to a simple negligence count, which includes subsequent negligence. It seems clear to us the answer is that an allegation that plaintiff was guilty of negligence in performing a certain duty, which proximately contributed to his injury, is as much an answer to that feature of the count which includes subsequent negligence as to that feature which includes primary negligence.

The whole question of last clear chance or subsequent negligence or the humanitarian doctrine, as it is sometimes called, is one of causation. We so observed in the case of Heffelfinger v. Lane, 239 La. 659, 196 So. 720, where we were not dealing with pleas which were in short by consent, the complaint charged merely negligence of defendant in running an automobile over plaintiff's intestate, proximately causing his death. At that time the pleas of contributory negligence were required by our decisions to specify the facts upon which the claim of contributory negligence was predicated. The pleas undertook to do that, but they did not state that the plaintiff's intestate was aware of impending danger where he was and that he negligently failed to extricate himself from it. They did allege that he was run against in a public highway, which he knew in general was dangerous, but they did not allege that he had any information as to the imminence of the danger, which is necessary in order to sustain a claim of subsequent contributory negligence. We observed that those pleas were sufficient whether the evidence shows subsequent negligence by defendant or primary negligence, and that 'the principle of subsequent negligence or last clear chance is but an element of causation. In either event, the negligence of decedent must be a concurrent contributing factor existing and efficient at the very time of the accident.' It was held that the pleas well set up the defense of contributory negligence, both to the claim of primary negligence and subsequent negligence which was included in the complaint.

In the case of Salter v. Carlisle, 206 Ala. 163, 90 So. 283, 284, we gave consideration to that question. There were negligence and wanton counts. The negligence counts did not in express terms charge subsequent negligence. The court instructed the jury with respect to subsequent negligence, and in that connection the court gave certain written charges at the request of the defendant to the effect that if plaintiff was guilty of negligence in the least degree which proximately contributed to her injury then they cannot find a verdict for the plaintiff. The count charging wantonness was not submitted to the jury. This left before them counts charging simple original or primary negligence and subsequent negligence. According to the charge above mentioned, the court noted that the phraseology is not to be approved and might have been refused without error. But in view of the fact that the defense of contributory negligence was pleaded in short by consent, they were properly given, the Court observing that 'It stated the law of contributory negligence in general. Here plaintiff sought to recover on a charge of subsequent negligence as already explained. To counts so alleging plaintiff's cause of action, as well as to count 1, this charge 10 correctly applied the law of contributory negligence.' Evidently the theory upon which that ruling was made was that to which we referred, that the question of last clear chance or subsequent contributory negligence is one of proximate causation. In that case the pleading was in short by consent and, therefore, it was not necessary to state the circumstances upon which defendant relied to show that contributory negligence was a proximate contributing cause of her injury.

It is well settled by the decisions of our Court prior to Rule 37 that no acts of contributory negligence, not specially pleaded, can be proved or made the predicate for a verdict for the negligent party. Central of Georgia R. R. Co. v. Pope, 221 Ala. 145, 127 So. 835; Centennial Ice Co. v. Mitchell, 215 Ala. 688, 112 So. 239; Byars v. Hollimon, 228 Ala. 494, 153 So. 748.

Our Rule of Practice 37, Code 1940, Tit. 7, Appendix, in the circuit court of law, has simplified pleading contributory negligence. It went into effect on June 18 1942. We find the cases which require the plea of contributory negligence to specially plead the facts upon which the negligence is predicated is thereby changed so that in such pleading 'no greater particularity of averment as respects the acts, omissions, conduct or behavior relied on as constituting contributory negligence is required than is required in averring, in a complaint, the acts, omissions, conduct or behavior relied on as constituting negligence.'

But even so, it was held in Pankey v. City of Mobile, 250 Ala. 566, 35 So.2d 497, that an allegation in plea of contributory negligence was insufficient under Rule 37 if, after alleging facts showing a duty to plaintiff, it merely alleged that she was guilty of negligence which directly or proximately contributed to her fall. It was held to be a mere conclusion. The same objection to a complaint charging negligence would be well taken. The complaint or plea should allege that the alleged duty, specifying it, was negligently breached without the need of specifying the details constituting the breach. Prior to Rule 37, the plea must allege in addition to the above the particular manner in which it was breached. Francis v. Imperial Sanitary Laundry & Dry Cleaning Co., 241 Ala. 327, 2 So.2d 388.

With respect to a count in a complaint charging negligence, it is sufficient to allege only the facts and circumstances from which the law imposes a duty to the plaintiff, and then a general charge of negligence in performance of that duty without a statement of the particular manner in which it was negligently performed. 15 Alabama Digest, Negligence, k111(1), pages 336, 337. To illustrate: in the case of Louisville and Nashville R. R. Co. v. Calvert, 172 Ala. 597, 55 So. 812, a count was held good which alleged that the employee in charge of the train of defendant's railroad so negligently managed it that the engine ran against plaintiff's intestate at a public road crossing, proximately causing his death. It is said that such a count justified primary or subsequent negligence. The facts alleged showed a duty to use due care not to run its engine against deceased, but that it negligently did that very thing. It need not allege in what respect it was negligent. Louisville and Nashville R. R. Co. v. Sunday, 254 Ala. 299, 48 So.2d 216; Kendrick v. Birmingham Southern Ry. Co. 254 Ala. 313, 48 So.2d 320.

The charge we are dealing with is not limited to original contributory negligence but any negligence of plaintiff which proximately contributed to the injury. A special plea under Rule 37 in such broad terms would not be good because it does not allege what plaintiff negligently did or failed to do, and a charge in such broad terms would not be good when based upon a special plea which must specify the duty which is negligently breached. It is good based on a plea in short by consent which does not specify the duty that was breached. Therefore, the charge need not do so. It will be observed that the charge, which we have quoted and which we are considering, has application only by its terms to count 'A', which is a simple negligence count.

Charges predicated...