Central of Georgia Ry. Co. v. Williams

Decision Date26 April 1917
Docket Number4 Div. 712
PartiesCENTRAL OF GEORGIA RY. CO. v. WILLIAMS.
CourtAlabama Supreme Court

Appeal from Law Court, Pike County; T.L. Borum, Judge.

Action by M.M. Williams against the Central of Georgia Railway Company for damages for killing animal. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.

The first count declared for the killing of two cows. The second count for one yearling. The second plea was: That at the time of filing of the complaint defendant had, and continuously has had since that time, and now has a release from the liability set forth in the complaint by virtue of the written agreement between plaintiff's husband, R.J. Williams, who is dead, and defendant (here setting out the book and page of the record of the release). that said agreement shows the lease from defendant to R.J. Williams in which R.J. Williams was called the tenant, and that in said agreement the word "tenant" is used and declared to include the said Williams, his heirs, executors, administrators, and any person who may enter upon said described premises as the successor or assignee or licensee of said R.J. Williams, and that said plaintiff in this cause is embraced and included under and in the word "tenant" as used in said agreement. That the stock, if killed at all, were killed on the premises described within said written agreement. That in said written agreement was the following clause:

"That the tenant will save and hold harmless the company, its successors and assigns, from all damage, injury or liability that may arise from the destruction or injury of in a building or improvement, or personal property of any description by fire or from any other cause whatever, whether the same should be attributed to the negligence of the employé of said company or not, where such damage, injury, or liability is caused or increased by reason of the use of the premises hereunder."

That the word "company," as used in said agreement, is the same as "defendant" in this cause, and that the liability or damage set forth in the complaint was caused or increased by reason of the use of the premises described in said agreement.

The following charges are noted as refused to defendant:

(9) There is no duty resting on an engineer to prevent killing stock till there is an obstruction on the track, or at most, until there reasonably appears to be danger.
(11) If you find from the evidence that the engineer was competent to keep a proper lookout, and, having done so, saw an animal on or in dangerous proximity to the track, and the engineer, by the use of ordinary care and prudence, could not prevent the accident, defendant would not be liable for injuries done thereunder.
(12) If you believe from the evidence that the killing of any one of the animals was unavoidable, plaintiff cannot recover for the killing of such animal.
(16) If you believe from all the evidence and circumstances of the case that the killing of the animal was not the result of the positive misconduct or carelessness of defendant, its agents or servants, your verdict should be for defendant.
(16 1/2) If the jury find from the evidence that plaintiff was informed of the accident the next morning after the accident occurred with reference to the cows, and could by reasonable diligence have used the hide or the meat, then the value of the hide and of the meat that could have been used should be deducted from the value of the cow when killed in assessing the damages.
(17) If the jury believe from the evidence that either one of the cows came suddenly from the left-hand side of the track and so close to the train that the engineer could not stop in time to prevent the accident, then they should not find for plaintiff damages for the killing of said cow.

W.E Griffin, of Troy, for appellant.

John H. Wilkerson, of Troy, for appellee.

McCLELLAN J.

The appellee sued the appellant to recover damages for the negligent killing of two cows and a yearling, the first count declaring upon the wrong suffered through the loss of the cows, and the second for the loss of the yearling. Besides the general issue, the defendant interposed amended plea 2 the theory of which was to conclude against a recovery because the plaintiff as a tenant of the defendant of a part of the unused right of way of the defendant had released damages consequent upon negligence of the character declared on. The amended plea bore an express denial of the "negligence alleged," but nevertheless claimed a release from the damages sued for. The court sustained the plaintiff's demurrer, which took the objection that the plea was neither an unqualified plea in bar nor in confession and avoidance; that, while it purported to be a plea of the latter class, yet it asserted a denial of the negligence charged. The demurrer was properly sustained.

It is an elementary principle of pleading that a plea, to constitute a defense, must either traverse or confess and avoid the matter of the complaint. Smith v. Agee, 178 Ala. 627 (the opinion in this case is correctly reproduced in Ann.Cas. 1915B, 129 et seq., and in 59 So. 647, while it is not so reproduced in our official report, cited above); Buddington v. Davis, 6 How.Prac. (N.Y.) 401, 403. In pleas of the latter class the confession is as essential as avoidance. Authorities supra. This plea would avoid, yet it does not confess, the negligence charged.

Under the evidence it was necessary to submit to the jury for decision the issues tendered by both counts of the complaint. The evidence was more forceful in support of the cause of action stated in the first count than it was in support of the cause declared on in the second count. Whether the defendant's train in fact struck the yearling was a debatable question under the evidence. If the jury concluded that a train caused the animal's death, the burden was upon the defendant to show that no negligence attributable to it proximately caused the animal's injury. Ex parte Sou Ry. Co., 181 Ala. 486, 61 So....

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    ...... East Coast Ry. Co. v. Peters, 73 So. 151, 72 Fla. 311, Ann. Cas. 1918D 121; Central of Georgia Ry. Co. v. Williams, 75 So. 401, 200 Ala. 73. . . Appellees'. second ......
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    ...... expressly denies the cause of action; though it sets up good. matter in avoidance. Central of Georgia R. Co. v. Williams, 200 Ala. 73, 75 So. 401. . . In the. case of ......
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