Birmingham Electric Co. v. Baker

• Decision Date: 09 May 1929
• Docket Number: 6 Div. 218.
• Citation: 122 So. 316,219 Ala. 324
• Parties: BIRMINGHAM ELECTRIC CO. v. BAKER.
• Court: Alabama Supreme Court

122 So. 316

219 Ala. 324

BIRMINGHAM ELECTRIC CO. v. BAKER.

6 Div. 218.

Supreme Court of Alabama

May 9, 1929

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by W. L. Baker against the Birmingham Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Bradley Baldwin, All & White, of Birmingham, for appellant.

Jacobs & Carmack, of Birmingham, for appellee.

ANDERSON C.J.

It is of course, well settled by the decisions of this court that negligence may be charged in general terms; but, when the pleader also attempts to set out the quo modo, the facts so set out must constitute negligence. We think, however, that count 2 in the present complaint does not attempt to set up the quo modo, or the facts or circumstances constituting negligence; that is, the condition or circumstances under which the defendant's servant caused the car to collide with the plaintiff's automobile. It, in effect, merely charges that the said servant wantonly caused the car to collide with the automobile, the equivalent of charging that the car was run upon or against the automobile, and the trial court did not err in overruling the demurrer to said count 2 of the complaint.

The count in the case of Jackson v. Vaughn, 204 Ala 543, 86 So. 469, is unlike count 2 in the present case. There the pleader, after charging negligence in general terms, further charged that the act or omission was "under such circumstances as that he knew that his conduct would likely or probably cause great personal injury to some one," and the court properly held that, as the pleader predicated the willful or wanton injury as dependent upon the circumstances existing, the facts or details showing the circumstances should have been set out.

There was no error in refusing the defendant's requested charge made the basis of the first assignment of error, and which said charge is therein set out. It is an affirmative instruction that the plaintiff was guilty of negligence on the "occasion complained of," and this was a question for the jury, even if the charge could not have been refused for other reasons.

The plaintiff's evidence shows that the car line was a part of the street; that said street was narrow, and, in backing his car from his home or starting point, he went over or upon the track, but before doing so looked and discovered no near approaching car. It is true, that he did not, after getting in the street and on the car line, after his automobile stopped and he was attempting to go forward, look behind for an approaching car, but he was not, as matter of law, guilty of negligence in this respect, as one who travels a street owes no duty, as matter of law, to keep a lookout to his rear for approaching vehicles, as he has a right to assume that those to his rear will not run into him and will at least give him warning of their approach. Anderson v. Bradley, 208 Ala. 302, 94 So. 287. The cases cited and relied upon by counsel are not to the contrary.

There was no error in refusing the defendant's requested charge incorporated in assignment of error 4. It is an...