Birmingham Ry., Light & Power Co. v. Barranco
Decision Date | 15 January 1920 |
Docket Number | 6 Div. 966 |
Parties | BIRMINGHAM RY., LIGHT & POWER CO. v. BARRANCO. |
Court | Alabama Supreme Court |
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:
(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:
The demurrers were as follows:
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.
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 plaintiff's contributory negligence in bar of a recovery. None of these pleas proceeded on the untenable theory, in this jurisdiction, that would attribute to plaintiff contributory negligence on the part of the driver of the automobile in which plaintiff was at the time a passenger, thus excluding from authoritative influence the doctrine of Birmingham, etc., Ry. v. Carpenter, 194 Ala. 141, 144, 69 So. 626, where it was well decided that a passenger who has no control, charge, or authority over the driver of the vehicle cannot be concluded in his action for damages for personal injuries by negligence of such independent driver of the vehicle. Hence the sufficiency of these several pleas, as against the demurrer addressed to them separately, must be tested by the law's measure of ascription of negligence to a passenger; the conduct or omission of the driver, in the circumstances averred, but affording the condition by which the passenger's (plaintiff's) duty, and its averred breach or breaches, is to be ascertained and, if it existed, the effect thereof upon plaintiff's right determined, to the end that it may be decided whether the plaintiff (not the driver) was approximately, contributorily negligent with respect to the injury declared on. The report of the appeal will reproduce special pleas 3 to 9, inclusive, along with the demurrers to pleas 2 to 9, inclusive.
Plea 2 the first of the series, would have predicated plaintiff's contributory negligence of her failure to look and listen for a street car approaching the point of intersection of the street over which the automobile was moving with the street over which the street car was moving; it being alleged that if the plaintiff had so looked or listened she would have discovered the street car in time to have reported its approach to the driver, whereupon "he would have slowed down or stopped in time to have averted the accident." The primary duty averred is that plaintiff, a passenger merely, should have looked and listened for the approaching car, which, being observed, would have so advised the plaintiff of its approach as that she could (must) have reported that fact to the driver, over whose operation she is not alleged to have had any authority or control. It is not inappropriate to note that neither in this plea nor in those numbered 3 to 9, inclusive, is it alleged that there was a joint enterprise, nor any relation of master and servant or principal and agent then existing between the driver...
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