Buffalo Rock Co. v. Davis

• Decision Date: 08 March 1934
• Docket Number: 6 Div. 368.
• Parties: BUFFALO ROCK CO. v. DAVIS.
• Court: Alabama Supreme Court

154 So. 556

228 Ala. 603

BUFFALO ROCK CO. v. DAVIS.

6 Div. 368.

Supreme Court of Alabama

March 8, 1934

Rehearing Denied May 24, 1934.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages for personal injuries by Mrs. Fay Davis against the Buffalo Rock Company. From a judgment for plaintiff defendant appeals.

Affirmed.

The refusal of requested instructions covered by those given is not error.

Count 2 alleges that "a servant, agent or employe of the defendant, while acting within the line and scope of his employment, was operating a motor truck over and along a public thoroughfare in Dallas County, Alabama * * * commonly known as the Maplesville-Selma Road at a point on said road, to-wit, one and one-half miles southwesterly of Plantersville, Alabama, and plaintiff avers that said agent, servant or employe of the defendant then and there so negligently operated said motor truck as to cause an automobile which was being then and there operated over and along said road at said point by the plaintiff to be thrown or to skid from said public road and over an embankment adjoining said road at or about said point; and plaintiff avers that as a proximate consequence the automobile being operated then and there by the plaintiff, as aforesaid, was caused to turn over and the plaintiff was caused" to be injured and damaged in the manner catalogued. "And plaintiff avers that all of her said injuries and damages were proximately caused by the negligence of the said agent servant or employe of the defendant while acting within the line and scope of his employment in and about the operation of said truck at the time and place aforesaid."

The gist of count 3 is set forth in the opinion.

Count 4 alleges that "plaintiff was operating an automobile over and along what is commonly known as the Maplesville-Selma Road in Dallas County, Alabama * * * when a motor truck of the defendant, being operated by a duly authorized agent of the defendant acting within the line and scope of his employment, negligently caused said truck to swerve suddenly across said road immediately in front of an automobile being then and there operated by the plaintiff, as aforesaid, and causing said automobile being so operated by plaintiff to be thrown or to skid off said road and to collide with an embankment on the side of said road," as a proximate consequence of which plaintiff was injured.

The demurrer is upon these grounds: The complaint does not state a cause of action. The averments are vague, indefinite, and uncertain. Defendant is not informed by the averments as to the nature of things complained of; cannot ascertain from the averments wherein or how it violated any legal duty. For aught appearing, plaintiff received her alleged injuries as the result of her own negligence. For aught appearing, defendant was not guilty of any negligent act proximately causing the alleged injuries. The allegations are but conclusions of the pleader. Defendant is not informed with certainty as to the place said alleged negligent act was committed. Sufficient causal connection is not shown by the allegations of the complaint between the alleged injuries and the negligent act of the defendant.

Plaintiff's theory of the case was that she was driving her automobile on the highway and in front of her was a truck belonging to the defendant, operated by one of its agents. As plaintiff's car approached to within fifty or seventy feet of the rear of the truck, she sounded her horn-a loud horn. At that time the truck was traveling in the middle of the road at a speed of thirty or thirty-five miles an hour. The driver of the truck gave no indication of having heard the horn. Plaintiff drew up to within some twenty-five feet of the truck and again sounded her horn. Thereupon the truck moved over to the right, giving plaintiff sufficient room for passage on the left. Plaintiff thereupon increased her speed, moved over to the left preparatory to passing. When she was within four or five feet of the rear of the truck, the driver of the truck suddenly and without warning swerved the truck back into the middle of the road, leaving no room for plaintiff to pass, whereupon plaintiff applied her brakes, pulled the steering wheel to the right in an effort to come in behind the truck and keep off the embankment on the left. As she did so, her car skidded out of control, slid across the road and over an embankment on the right-hand side. There was no contact between the two vehicles. The truck did not stop.

Defendant's theory is that its truck was not involved in any accident and the driver knew nothing of the injuries to plaintiff; that the truck which plaintiff undertook to pass was a cotton truck.

This charge, the refusal of which is made the basis of assignment 11, was requested by defendant: "4. The court charges the jury that the driver of the car in front owes no duty to the car trailing, except to use the road in the usual way, in keeping with the laws of the road, until he has been made aware of the desire of the driver of the trailing car to pass by signal or otherwise."

R. P. Evans, Borden Burr, and Stokely, Scrivner, Dominick & Smith, all of Birmingham, for appellant.

Chas. W. Greer, of Birmingham, for appellee.

FOSTER Justice.

This suit was tried on counts 2, 3, and 4. Count 2 alleges that both plaintiff and defendant's agent were using a public road by each operating on it a motor vehicle. They both had such legal right. Therefore each owed to the other the duty not to injure him by reason of negligence or wantonness. Cooper v. Agee, 222 Ala. 334, 132 So. 173; Ivy v. Marx, 205 Ala. 60, 87 So. 813, 14 A. L. R. 1173; Barbour v. Shebor, 177 Ala. 304, 310, 58 So. 276; American Bolt Co. v. Fennell, 158 Ala. 484, 48 So. 97.

When a complaint shows that both plaintiff and defendant were in the ordinary and rightful use of a highway, and a duty is thereby shown, the general averment of a negligent or wanton injury by defendant of plaintiff is sufficient. Alabama Fuel & Iron Co. v. Bush, 204 Ala. 658, 86 So. 541; Barbour v. Shebor, supra; American Bolt Co. v. Fennell, supra; Birmingham R., L. & P. Co. v. Barrett, 179 Ala. 274, 60 So. 262, 263; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933.

Knowledge of the probability of danger prior to the alleged wrongful act is prerequisite to subsequent negligence and wantonness, but it is not necessary to primary negligence. In some instances no duty of care, the failure of which is negligence, arises without such notice (Southern Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665; 45 C.J. 1066); but it is then subsequent negligence.

As respects the element of knowledge of the peril, there is no distinction in principle between subsequent negligence and willful or wanton wrong. Central of Ga. Ry. Co. v. Corbitt, 218 Ala. 410, 118 So. 755. But such notice of danger is not an element of primary negligence, for due care arises without notice of the danger, when certain relations exist which create the legal duty of ordinary care.

The driver of defendant's car owed the plaintiff the duty to observe ordinary care not only after discovering her presence in the car, but also to anticipate the presence of plaintiff, or others, in the car, and also to anticipate the presence of another car in which plaintiff or others, such as plaintiff, might be passengers. Cooper v. Agee, supra; 48 C.J. 909; 2 R. C. L. 1184.

Accordingly it has been held that a count that defendant "negligently permitted and suffered the said locomotive and train to run into and against a passenger car" in which plaintiff's intestate was a conductor is sufficient as a count for simple negligence. Louisville & N. R. R. Co. v. Anchors, 114 Ala. 492, 22 So. 279, 62 Am. St. Rep. 116.

And when a duty is shown, no more is required than to aver that the...