Bradley v. Johnson

• Decision Date: 15 January 1925
• Docket Number: 6 Div. 290
• Citation: 102 So. 710,212 Ala. 330
• Parties: BRADLEY et al. v. JOHNSON.
• Court: Alabama Supreme Court

102 So. 710

212 Ala. 330

BRADLEY et al. v. JOHNSON.

6 Div. 290

Supreme Court of Alabama

January 15, 1925

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

Action for damages by Ivor Johnson against Lee C. Bradley and J.S Pevear, as coreceivers of the Birmingham Tidewater Railway Company, for injuries sustained to person and property in a collision by a street car of defendant with plaintiff's automobile. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Bradley Baldwin, All & White, of Birmingham, and Huey & Welch, of Bessemer, for appellants.

Black &amp Harris, of Birmingham, and Goodwyn & Ross, of Bessemer, for appellee.

ANDERSON C.J.

This case was submitted to the jury on counts 3 and 5 of the complaint, which ascribe the plaintiff's injuries to the wanton misconduct of the defendants' agents or servants while acting within the line and scope of employment in causing one of defendants' cars to run upon or against the plaintiff's automobile while he was attempting to cross the defendants' track.

The case is therefore a simple one of wanton misconduct, and we are at a loss to understand why so many errors have been assigned and insisted upon which have no bearing upon the real issues involved. Therefore all suggestions of error as affecting simple, subsequent, or contributory negligence will be discarded.

It was immaterial whether the defendants' track was embedded in the road at the crossing, as the evidence shows that it was not so embedded at other points; was in a sense a rural line and formed no part of a street or highway except perhaps at the crossing. The proof also shows that the crossing at the hour of plaintiff's injury was a very populous and much frequented one, and it was immaterial as to whether or not the crossing was in a public road or highway, in so far as wantonness was involved, but for the fact that the plaintiff unnecessarily charged that it was in count 3; and, as the case must be reversed for other reasons, we do not think it necessary to decide whether or not the road was a public one. In this connection, however, see McDade v. State, 95 Ala. 28, 11 So. 375.

The two counts were not subject to the grounds of demurrer setting up a failure to negative the fact that the injury was covered by the Workman's Compensation Act (section 7586 of the Code of 1923). If this defendant, not the employer of the plaintiff, was within and relied upon said act it should have been the actor in pleading the fact,--Demopolis Telephone Co. v. Hood (Ala.Sup.) 102 So. 35, wherein a distinction is made between it and the case of Steagall v. Sloss Co., 205 Ala. 100, 87 So. 787. Moreover, the Workman's Compensation...