City Delivery Co. v. Henry

Decision Date19 May 1903
Citation139 Ala. 161,34 So. 389
PartiesCITY DELIVERY CO. v. HENRY.
CourtAlabama Supreme Court

Appeal from City Court of Birmingham; Chas. A. Senn, Judge.

Action by Lula Henry against the City Delivery Company. From a judgment for plaintiff, defendant appeals. Reversed.

There were four counts in the complaint, but the averments of these several counts necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. The defendant demurred to these several counts of the complaint, which demurrers were overruled by the court. The defendant pleaded the general issue and several special pleas, among which were the following: "Fourth. And for further answer to the plaintiff's complaint, and to each count thereof, the defendant says that the plaintiff was guilty of negligence which proximately contributed to her alleged injury, which would bar a recovery in this case. Fifth. That the plaintiff was guilty of negligence which contributed proximately to her alleged injuries, in this That while walking along and across one of the public streets in the city of Birmingham, Alabama, to wit, at the intersection of Eighteenth street and Second avenue, she negligently and carelessly did so without either looking or listening for cars or vehicles that might be passing along. Seventh. And for further answer to the complaint, and to each count thereof, the defendant says that the plaintiff was guilty of negligence which contributed proximately to her alleged injuries, in this: That shortly before the accident the plaintiff, being a passenger on one of the cars of the Birmingham Railway & Electric Company, a common carrier doing business in Jefferson county, Alabama, alighted therefrom at the intersection of Second avenue and Eighteenth street, in the city of Birmingham, Alabama, negligently and carelessly failed to listen and look, and proceeded across Eighteenth street without taking ordinary and due care for her preservation and safety, in that, if she had looked or listened, she could have seen and heard the defendant's wagon and mules as they were going north on Eighteenth street, in the opposite direction to the car from which the plaintiff had alighted, and thereby have avoided the collision with the mules, and the injuries alleged to have been received in her complaint." The plaintiff demurred to each of these pleas upon the grounds (1) that they do not set up any facts which showed that the plaintiff was guilty of contributory negligence; and (2) because said pleas go to the whole of the complaint, and constitute no answers to the second and fourth counts thereof. The demurrers to the fourth, fifth and seventh pleas were sustained.

John F Martin, for appellant.

Banks &amp Selheimer, for appellee.

McCLELLAN C.J.

This action is prosecuted by Lula Henry against the City Delivery Company, and sounds in damages for personal injuries. The character and extent of plaintiff's injuries are not indicated in the complaint, further than is involved in the averments that they were "serious," and that she has suffered and will continue to suffer from them "both in body and mind." In our opinion, these averments are insufficient. The defendant, hailed into court to answer a complaint for having inflicted injuries upon the person of the plaintiff, and thus impleaded to defend both the wrong and the injury, and to compensate for the latter if the wrong be proved--the damages being measurable by the character and extent of the hurts done--is...

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122 cases
  • Louisville & N.R. Co. v. Abernathy
    • United States
    • Supreme Court of Alabama
    • June 30, 1916
    ...... course of his employment and within its scope"5 citing. as authority the Henry Case, 139 Ala. 161, 34 So. 389, and. many other decisions from the several states, as well as 10. ... . . The. soundness of the doctrine adopted in City Del. Co. v. Henry, 139 Ala. 161, 34 So. 389, was at that time. questioned by Mr. Wood, whose ......
  • Louisville & N.R. Co. v. Johns
    • United States
    • Supreme Court of Alabama
    • March 6, 1958
    ...supra, such statements are disapproved. 'Our holdings in the Hayes and Reed cases, supra, are based on the case of City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389, decided by this court in 1903, which has been criticized on more than one occasion, but never overruled by this court on t......
  • Birmingham Ry., Light & Power Co. v. Moore
    • United States
    • Supreme Court of Alabama
    • January 30, 1906
    ...... . On. Rehearing, November 15, 1906. . . Appeal. from City Court of Birmingham; Charles A. Senn, Judge. . . Action. by Ella P. Moore against ... by appellant's counsel in support of the insistence:. City Delivery Company v. Henry, 139 Ala. 161, 34 So. 389; Central of Georgia Ry. Co. v. Freeman, 140 Ala. ......
  • Anderson v. Southern Cotton Oil Co.
    • United States
    • United States State Supreme Court of Florida
    • February 23, 1917
    ...... agent and servant in and upon the streets of the city of. Pensacola, county of Escambia, state of Florida, with the. permission of and by the authority ...R. A. (N. S.). 653; Palos Coal & Coke Co. v. Benson, 145 Ala. 664,. 39 So. 727; City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Fones v. Phillips, 39 Ark. 17, 43. Am. Rep. 264; Hearns ......
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