City Delivery Co. v. Henry

• Decision Date: 19 May 1903
• Citation: 139 Ala. 161,34 So. 389
• Parties: CITY DELIVERY CO. v. HENRY.
• Court: Alabama Supreme Court

34 So. 389

139 Ala. 161

CITY DELIVERY CO. v. HENRY.

Supreme Court of Alabama

May 19, 1903

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...