Birmingham Ry., Light & Power Co. v. Barranco, 6 Div. 966

• Court: Supreme Court of Alabama
• Writing for the Court: McCLELLAN, J. McCLELLAN, J.
• Citation: 203 Ala. 639,84 So. 839
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. BARRANCO.
• Docket Number: 6 Div. 966
• Decision Date: 15 January 1920

84 So. 839

203 Ala. 639

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

6 Div. 966

Supreme Court of Alabama

January 15, 1920

On Rehearing, February 5, 1920

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Action by Mrs. C.P. Barranco against the Birmingham Railway, Light & Power Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

The following are the pleas directed to be set out:

(3) The plaintiff ought not to have and recover in this action, for that she was herself guilty of contributory negligence which proximately contributed to her injuries and damages in this: That while riding as a passenger in an automobile which was approaching a street intersection in a populous part of the city of Birmingham at a high and dangerous rate of speed, the plaintiff negligently failed to require the driver of said automobile to reduce the speed thereof, as she might well have done, and as a proximate consequence said car was driven onto said street intersection, where it collided with defendant's car, at such rapid rate of speed that it could not be stopped within the distance from said track where the driver of the automobile could see a street car approaching said intersection

(4) That the plaintiff ought not to have and recover in this case, for that she was guilty of negligence which proximately contributed to her injuries and damages in this: That while riding as a passenger in an automobile which was traveling at a high and dangerous rate of speed, along an avenue and across street intersections in a populous part of the city of Birmingham, where plaintiff well knew that there was danger of striking or colliding with pedestrians, automobiles, or street cars at said street intersections, the plaintiff negligently failed to require the driver of said automobile to reduce the speed thereof, as she well might have done, and said car was driven at said high and dangerous rate of speed onto a street intersection, and as a proximate consequence thereof collided with defendant's street car, and plaintiff received her said injuries

(5) Same as plea 4 down to and including the words "negligently failed to require the driver of said automobile to reduce the speed thereof," and continues as follows:

And said automobile was driven upon such street intersection at such a high and dangerous rate of speed that it could not be stopped before colliding with a street car after the driver could see such street car approaching, and as a proximate consequence of plaintiff's negligence in failing to require the reduction of speed as aforesaid said automobile collided with said street car, and plaintiff was injured as alleged.

(6) Same as plea 4 down to and including the words "negligently failed to require the driver of said automobile to reduce the speed thereof," and concludes as follows:

To a safe rate, and said automobile was driven upon a street intersection, where the collision with defendant's street car occurred, at such a high and dangerous rate of speed that he could not avoid colliding and did collide with defendant's street car, as a proximate consequence of which plaintiff received her said injuries and damages.

(7) Plaintiff ought not to have and recover in this case, for that she was herself guilty of negligence which proximately contributed to her injury in this: That plaintiff negligently allowed herself to be driven onto a street intersection, where the collision with defendant's car occurred, at such a high and dangerous rate of speed that the driver of the automobile could not stop the same within the distance from said track at which he could see defendant's car approaching said intersection, as a proximate consequence of which said automobile and said street car collided, and plaintiff was injured as alleged.

(8) That plaintiff ought not to have and recover in this case, for that, if she had looked and listened for the approaching street car of the defendant when she was close enough to the crossing to see or hear it, she would have seen or heard the same in time to have reported its approach to the driver of the automobile in which she was at the time riding in ample time for him to have slowed down or stopped the automobile in time to avert the accident, and if the driver had been so warned of the approaching car he would have slowed down or stopped said automobile in time to have averted the accident, and the defendant avers that the plaintiff negligently failed to look and listen so as to enable her to so report to the driver of said automobile, and as a proximate result thereof contributed to her said alleged injuries.

(9) That the plaintiff ought not to have and recover in this case, for that she allowed herself to be driven at a high rate of speed along certain streets and street intersections of the city of Birmingham in violation of an ordinance thereof in such cases made and provided, well knowing the danger in so doing; she negligently failed to take any steps to secure a reduction of said speed to as safe rate as she well might have done, and as a proximate consequence of her said negligence the car ran upon a street intersection at such a rate of speed that it could not be stopped before colliding and did collide with defendant's street car which was then and there passing said intersection, and plaintiff received her said injuries and damages as alleged.

The demurrers were as follows:

(1) Fails to aver or show that plaintiff negligently did or omitted to do anything.

(2) Fails to aver or show that the plaintiff had control of the driver of said auto.

(3) Fails to show or aver that plaintiff had charge or control of the operation of said auto.

(4) For aught that appears, the plaintiff, by looking or listening, could not have observed the approach of said

street car.

The above are common to all the pleas.

To plea 3:

Said plea is no answer to any count of the complaint and tenders an immaterial issue.

To plea 4:

Said plea fails to aver or show that the plaintiff had charge or control of the person operating the automobile.

To plea 5: Same as to 3 and 4.

To sixth plea: Same as to the preceding pleas.

To plea 7:

Alleges negligence as a mere conclusion, without setting up facts to support the averment; also demurrers assigned to the preceding pleas.

To plea 8: Same as to preceding pleas.

To plea 9: Same as to preceding pleas and adds:

No answer to complaint; seeks to hold this plaintiff responsible for the acts of a third person over whom she had no control; contrary to public policy; fails to aver that the plaintiff owned or controlled the automobile in which she was riding as such passenger at the time of the injury.

Tillman, Bradley & Morrow, of Birmingham, Huey & Welch, of Bessemer, and J.A. Simpson, of Birmingham, for appellant.

Mathews & Mathews and Goodwyn & Ross, all of Bessemer, for appellee.

McCLELLAN, J.

To plaintiff's (appellee's) complaint, claiming damages for personal injuries resulting from the collision of defendant's (appellant's) street car with an automobile in which plaintiff was a passenger while the car and the automobile were in public thoroughfares of the city of Birmingham, the defendant interposed nine special pleas, besides a general traverse, setting up...