Birmingham Ry., Light & Power Co. v. Bush

• Decision Date: 23 November 1911
• Citation: 56 So. 731,175 Ala. 49
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. BUSH.

56 So. 731

175 Ala. 49

BIRMINGHAM RY., LIGHT & POWER CO. v. BUSH.

Supreme Court of Alabama

November 23, 1911

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

Action by Lillian Bush against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Tillman Bradley & Morrow and Charles E. Rice, for appellant.

Frank S. White & Sons, for appellee.

SAYRE J.

It is averred in the complaint that plaintiff was injured while crossing a public street by being struck by a street car operated by the appellant corporation. In count 1 plaintiff concludes by averring that "her said injuries were caused by the negligence of the defendant in the negligent manner in which it ran or operated its car." This count is criticised as not containing a categorical averment of negligence. Mere general averments of negligence in cases of this character have been so often sustained that the principle involved is not open to question. It is curious to observe that the very effort to encourage and uphold the utmost simplicity of averment has led to some confusion; the result being due perhaps to an effort in some cases to push the practice beyond all reason. However, in this case, we are unable to find reversible error in the rulings on demurrer. Substantially this form of averment, though in strictness it is inferential, has had indorsement in cases heretofore. Birmingham Ry., L. & P. Co. v. Adams, 146 Ala. 267 40 So. 385, 119 Am. St. Rep. 27; L. & N. R. R. Co. v Church, 155 Ala. 329, 46 So. 457, 130 Am. St. Rep. 29; Birmingham Ry., L. & P. Co. v. Haggard, 155 Ala. 343, 46 So. 519. There has been no dissent from these precedents as furnishing a sensible and practical form of averment in ordinary cases of this character. The considerations which influenced the decision in Birmingham Ry., L. & P. Co. v. Weathers, 164 Ala. 23, 51 So. 303, find no field for operation in the case at bar.

Count 2 concludes by averring that plaintiff's "said injuries were proximately caused by the negligence of the defendant's motorman in charge of the operation of said car, while acting within the line and scope of his employment, in failing to exercise due care after discovering plaintiff's peril." In addition to the points taken against count 1, which are here repeated, appellant seems to insist that the count is bad because it does not allege that defendant's motorman negligently failed to exercise due care. But a failure to exercise due care, where care is demanded, is negligence. The count states a situation in which the defendant owed plaintiff the duty of diligence to avoid injuring her notwithstanding she may have negligently gone upon the track, and was for anything we see a sufficient statement of negligence under the authority of our cases. Southern Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293, and cases supra.

The rule has been frequently held to be that a plea of the plaintiff's contributory negligence must set forth the facts constituting the negligence, and that mere conclusions will not suffice. In its second plea "defendant says that plaintiff was herself guilty of negligence which proximately contributed to her alleged injuries, and that her said negligence consisted, in this: Plaintiff negligently went upon, or dangerously near, or remained upon, or dangerously near, the railway track of defendant in front of and in dangerous proximity to a car then and there approaching on said track." Obviously this plea was no answer to the charge of wanton injury contained in counts 4 and 6. Count 2 charged that defendant's motorman failed to exercise due care after he discovered plaintiff's peril, a charge of subsequent negligence as it is commonly termed. Plaintiff's negligence in going upon the track was no sufficient answer to this count. L. & N. R. R. Co. v. Brown, 121 Ala. 221, 25 So. 609; Central of Georgia v. Foshee, 125 Ala. 199, 27 So. 1006. Other counts proceeded as for simple initial negligence. The plea is framed in the alternative. Both alternatives must be sufficient. Probably the demurrant might have a good ground of demurrer to the second alternative, which, construed against the pleader, was that plaintiff remained upon or dangerously near the railway track of defendant in front of and in dangerous proximity to a car then and there approaching on said track. That these facts do not per se constitute contributory negligence is clear, for, if so, no one who is run down by a car could ever recover. The plea needed a further averment of facts which would show the act of plaintiff to have been negligent, or, since the facts averred may or may not have constituted negligence, according to the construction to be put by the jury upon the entire content of the plaintiff's environment at the time, a matter sometimes beyond the reach of specific allegation, the act of plaintiff should have been averred to have been negligently done. But the demurrer did not take this point. It touches the question of alternative averments only by saying that the plea sets out several defenses in the alternative, and that the first alternative is no answer to the complaint. In respect to the first alternative averment of the plea, to wit, that plaintiff negligently went upon, or dangerously near, the track in front of and in dangerous proximity to a car then and there approaching on said track, my own opinion is that it sufficiently states a case of contributory negligence. Other rulings on demurrers to pleas of the same general character make it apparent that the demurrer to the plea in question was sustained for the reason that it stated a mere conclusion. L. & N. R. R. Co. v. Calvert, 54 So. 184, is cited on appellee's brief as sustaining the ruling below. But I apprehend that if the plea condemned in that case had shown that the train was in dangerous proximity at the time when plaintiff saw it approaching and measured the chance of crossing the track, and had alleged that thereupon he negligently attempted to cross, the ruling would have been different. It seems that the only possible objection to the plea in that case in that shape would have been that the plea failed to measure the distance. But to require in pleading the definition of every word and phrase like that would lead only to an interminable multiplication of words with no countervailing advantage in clearness of idea or expression. The plea in the shape I have suggested would have advised the plaintiff of every essential element of the proposed defense, and served every purpose of pleading. My conclusion is that the plea in the present case, as for any objection taken to it, was a sufficient answer to the counts going upon simple initial negligence, and that there was error in sustaining the demurrer. But plea 3, upon which, along with others, the case was tried, averred that "plaintiff went upon or dangerously near the railway track of defendant in front of, and in dangerous proximity to, a car then and there approaching on said track without looking for the car which struck her, or plaintiff, having looked for said car, negligently failed to (see) the same, or plaintiff, having looked and having seen said car, nevertheless negligently went upon or dangerously near the...