Blalack v. Blacksher

• Decision Date: 15 December 1914
• Docket Number: 154
• Citation: 66 So. 863,11 Ala.App. 545
• Parties: BLALACK et al. v. BLACKSHER.
• Court: Alabama Court of Appeals

66 So. 863

11 Ala.App. 545

BLALACK et al. v. BLACKSHER.

No. 154

Court of Appeals of Alabama

December 15, 1914

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by C.M. Blalack and others against J.J. Blacksher. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Tompkins & Kirkpatrick, of Mobile, for appellants.

Brooks & Crawford, of Mobile, for appellee.

BROWN J.

This is an action of trespass on the case, by the appellants against the appellee, to recover damages to an automobile, the property of the appellants, resulting from a collision with an automobile belonging to appellee, while appellee's car was being operated by his servant or agent on a public street in the city of Mobile. The case was tried on the complaint as amended, containing five counts, some of the counts ascribing the injury to the negligence of the defendant's servant or agent in the operation of defendant's car, while others imputed the injury to the wanton or willful conduct of defendant's servant or agent.

The record shows that the defendant filed a written appearance, reserving the right to demur or plead specially, but in fact did not plead to the complaint; and the plaintiffs were entitled to have a judgment nil dicit rendered against the defendant, on proper motion. Grigg v. Gilmer, 54 Ala. 430. The record shows, however, that after the plaintiffs were allowed to amend their complaint "issue was joined," and the case was tried and treated by the trial court and the parties as on the plea of the general issue of not guilty. Being so treated in the trial court, the appellants gain no advantage here that they would not be entitled to if the general issue had been pleaded. Travis v. Sloss-Sheffield S. & I. Co., 162 Ala. 605, 50 So. 108.

On this state of the pleadings, the insistence of the appellee that the injury complained of by the plaintiffs resulted from the negligence of plaintiffs' agent or servant does not present a material inquiry, within the issues presented by the pleadings.

"Contributory negligence is a special and affirmative defense and must be specially pleaded with particularity, and no other acts than those specially pleaded can be proved on trial, and, if proven, cannot be made the predicate for a verdict." So.Ry. Co. v. Shelton, 136 Ala. 191, 34 So. 194; Mobile Electric Co. v. Sanges, 169 Ala. 356, 53 So. 176, Ann.Cas. 1912B, 461.

In no case can contributory negligence be set up as a defense to willful or wanton counts.

The only material inquiry under the issues formed, in view of the evidence offered, was whether or not the defendant or his servant or agent was guilty of negligence or of willful or wanton conduct in the operation and management of the defendant's car, and, if so, whether or not such negligence or willful or wanton conduct was the proximate cause of the injury complained of; and on this issue the affirmative and burden of proof was with plaintiffs. If the affirmative of this issue is established by the evidence to the reasonable satisfaction of the jury, the question as to any negligence on the part of the plaintiffs' agent or servant was clearly immaterial, and was likewise immaterial if the affirmative of this issue was not so established. In other words, if the defendant's agent or servant was not guilty of negligence or of willful or wanton injury, as charged in the complaint, the defendant was not liable, whether the plaintiffs' agent or servant was guilty of negligence or not.

The evidence shows that while the plaintiffs' car in charge of their chauffeur, Ewing Browne, was proceeding east along Dauphin street near the head of North Hallett Street, in the city of Mobile, the car of the plaintiffs swerved toward the north side of the street to pass some teams, and here collided with the defendant's car, which was going west on the north side of Dauphin street; the front end of defendant's car ramming the left side of the plaintiffs' car, tearing off one of the wheels, breaking or bending the spindle of one of the axles, and otherwise injuring the car. There was evidence tending to show that the accident occurred in the daytime, when the streets were crowded with teams and people; that Dauphin street was a narrow thoroughfare; that there were two street car tracks, one on either side of the center of Dauphin street; and that the plaintiffs' car, in passing the team, was proceeding along the track situated on the south side of the center of the street. There was also evidence tending to show that the defendant's chauffeur was crippled; that he had to use a crutch, and, from some tendencies of the evidence, the jury might have inferred that he had only one foot. The evidence was in irreconcilable conflict as to the speed of the two cars; the evidence on the part of the plaintiffs tending to show that the defendant's car was running anywhere from 15 to 40 miles an hour, and that the plaintiffs' car was running from 5 [66 So. 865] to 15 miles an hour, while that on the part of the defendant tended to show that the plaintiffs' car was running from 15 to 40 miles an hour, and that the defendant's car had not attained a speed in excess of 15 miles an hour. The evidence also tended to show that the chauffeurs had each had some experience in running their respective cars in the city of Mobile and were familiar with the conditions on these streets.

On this state of the evidence, the determination of the issues presented by the counts of the complaint predicated on negligence was for the determination of the jury, and pertinent to this issue, and one of the questions the jury had to solve was whether a person, crippled as the evidence tended to show the chauffeur Rice was, could handle a car of the type in his charge (a Ford) and manipulate the brakes with his hands as efficiently in...