Birmingham-Tuscaloosa Ry. & Utilities Co. v. Carpenter

• Decision Date: 20 May 1915
• Docket Number: 65
• Citation: 194 Ala. 141,69 So. 626
• Parties: BIRMINGHAM-TUSCALOOSA RY. & UTILITIES CO. v. CARPENTER.
• Court: Alabama Supreme Court

69 So. 626

194 Ala. 141

BIRMINGHAM-TUSCALOOSA RY. & UTILITIES CO. v. CARPENTER.

No. 65

Supreme Court of Alabama

May 20, 1915

Rehearing Denied June 30, 1915

Appeal from Circuit Court, Tuscaloosa County; Bernard Harwood Judge.

Action by Burlie S. Carpenter against the Birmingham-Tuscaloosa Railway & Utilities Company. From a judgment for plaintiff defendant appeals. Affirmed.

After stating the fact that defendant was a body corporate operating a dummy line between the towns of Tuscaloosa and Holt, in Tuscaloosa county, by means of a steam dummy and cars thereto attached, and that the dummy collided with an automobile in which plaintiff was riding while the automobile was proceeding along the public highway at a grade crossing with said dummy line, it is alleged in the third count that the engineer of defendant, in charge of said engine drawing said car or cars, did wantonly and recklessly or intentionally cause said collision, and the consequent injury to plaintiff, by wantonly and recklessly or intentionally running said train upon or against said automobile in which plaintiff was riding, and while the said automobile was on the public highway in the act of crossing defendant's railway. The substance of the pleas is set out in the opinion, and as an index to the same plea 8 is here set out:

Plaintiff should not have or recover of defendant in the above cause, for that the plaintiff was contributorily negligent in the management and control of the automobile in which he was riding, in that he allowed said automobile to stop on the track of defendant a short distance in front of the engine and train of cars of defendant, and within such a short distance as not to allow the engine of defendant sufficient space in which to stop same before colliding with the automobile in which plaintiff was riding.

Moody &amp Moody, of Tuscaloosa, for appellant.

Samuel D. Weakley, of Birmingham, for appellee.

ANDERSON C.J.

Count 3 of the complaint sufficiently charged willful or wanton misconduct upon the part of the defendant's agents or servants. B.R., L. & P. Co. v. Barrett, 179 Ala 274, 60 So. 262; Barbour v. Shebor, 177 Ala. 307, 58 So. 276, and cases there cited. Of course, the agents or servants must be conscious of the fact that their acts or omissions will probably produce injury, in order to be guilty of willful or wanton misconduct; but the general averment of willfulness or wantonness imputes to them such consciousness. It is true, also, that this is an essential averment, when the complaint sets out, or attempts to set out, the acts--the quo modo--which constitute the willful or wanton misconduct; but where the said conduct is charged in general terms, as in count 3 of the complaint, it need not charge such consciousness, etc. The authorities cited and relied upon by appellant's counsel deal with the essential ingredients of willfulness and wantonness, but do not question the sufficiency of a general charge of same as made in the count under consideration. The trial court did not err in overruling the defendant's demurrer to this count.

The doctrine is well settled in this and most of the other states, as well as by the federal courts, that the contributory negligence of one in charge of, or control of, a train, car, or other vehicle, cannot be visited upon a person who is a passenger therein, whether for reward or not, unless the person so riding has charge or control of the vehicle, or over the person driving or operating same. L. & N.R.R. Co. v. Calvert, 170 Ala. 565, 54 So. 184; North Ala. Co. v. Thomas, 164 Ala. 191, 51 So. 418; Elyton Co. v. Mingea, 89 Ala. 521, 7 So. 666. The complaint avers that the plaintiff was riding in the car with which the defendant's train collided, as a passenger, and that said motor car was driven by one Tingley. The defendant's special pleas do not charge that the plaintiff owned or controlled the automobile, or that he had authority over or control of the driver, Tingley, and the trial court properly sustained the plaintiff's demurrer thereto, as they sought to place upon the plaintiff responsibility for the negligence of Tingley.

It is true that these rulings do not conform to section 34 of the act of 1911 (page 634) known as the Automobile Act, and which said section is as follows:

"The contributory negligence of the person operating or driving any motor vehicle in this state shall be imputed to every occupant of said motor vehicle at the time of such negligence in actions brought by such occupant or his personal representatives for the recovery of damages for death or personal injury whether the relation of principal and agent exists between such person operating or driving such motor vehicle and such occupant or not, provided that the provisions of this section shall not apply to passengers paying fare and riding in a motor vehicle regularly used for public hire."

The trial court evidently ignored this statute in the trial of...