City Ice Delivery Co. v. Lecari

• Decision Date: 24 January 1924
• Docket Number: 6 Div. 962.
• Citation: 210 Ala. 629,98 So. 901
• Parties: CITY ICE DELIVERY CO. v. LECARI.
• Court: Alabama Supreme Court

98 So. 901

210 Ala. 629

CITY ICE DELIVERY CO. v. LECARI.

6 Div. 962.

Supreme Court of Alabama

January 24, 1924

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

Action for damages for personal injuries by Sam Lecari against the City Ice Delivery Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Tillman Bradley & Baldwin and John S. Coleman, of Birmingham, for appellant.

Beddow & Oberdorfer, of Birmingham, for appellee.

MILLER J.

This is an action brought by Sam Lecari against the City Ice Delivery Company, a corporation, to recover damages for personal injuries sustained by him, which were caused by a kick, shove, or movement of mule belonging to the defendant, hitched to a wagon, while plaintiff was riding a bicycle along one of the public streets of the city of Birmingham.

The jury returned a verdict in favor of the plaintiff; a judgment thereon against defendant was rendered by the court; and from it this appeal is prosecuted by the defendant.

The complaint as originally filed and as amended contained in all 10 counts. They were numbered and lettered as follows: 1, 2, 3, 4, 5, A, B, C, D, and E. All were eliminated except 3, B, D, and E, which were submitted by the court to the jury. The defendant questioned by demurrer the sufficiency of each, and the court overruled these demurrers.

Count 3 alleges plaintiff, when injured, was riding a bicycle on a public street in the city of Birmingham, where he had a right to be, and defendant's mule, hitched to a wagon, kicked him, and as a proximate consequence he was injured. The count states the injuries received, and avers plaintiff "suffered said injuries and damages by reason and as a proximate consequence of the negligence of the defendant's servant or agent, acting within the line and scope of his authority, negligently driving, managing, or controlling said mule on a public street in the city of Birmingham on the occasion aforesaid."

Drivers of vehicles drawn by mules or horses in a public highway or street of a city must use due care to prevent injury to others traveling on the street or highway. Dozier v. Woods, 190 Ala. 279, 67 So. 283; 37 Cyc. p. 275, § 2, h. n. 28.

This count alleges a duty owed by the defendant to the plaintiff. It was to use due care in driving, managing, and controlling it mules in this street so as to prevent injury to him (plaintiff) while he was traveling the street. It alleges a breach of that duty by the agent or servant of the defendant while acting in the line and scope of his authority. It avers the servant was negligently driving, managing, or controlling the mule on the public street while acting in the line and scope of his authority; and the plaintiff avers his injuries were suffered as a proximate consequence of this negligence. The negligence averred is sufficient. It is not averred in too general a way. It is in the driving, managing, or controlling of the mule on the public street. This caused the mule to kick, which inflicted the injury on plaintiff as he passed on the street. This count in substance alleges he so negligently drove, managed, or controlled the mule on the public streets that the mule kicked and hit plaintiff while passing on his bicycle, and injured him. The facts averred are sufficient to show the injury was proximately caused by the negligent act. This count (3) states a cause of action, and the demurrers to it were properly overruled by the court. Birmingham, E. & B. R. Co. v. Stagg, 196 Ala. 612, 72 So. 164; West. Ry. v. Mays, 197 Ala. 367, 72 So. 641, and authorities supra.

Count B is the same as count 3 as to the above allegations, to the effect the plaintiff was kicked by defendant's mule when plaintiff was at a place in the street where he had a right to be, his injuries from it, and then states:

"Plaintiff avers that he suffered said injuries and damages by reason and as a proximate consequence of the defendant's agent or servant, acting within the line and scope of his authority, negligently allowing said mule to stand unhitched to a hitching post or by a halter attached to a weight in a public street in the city of Birmingham, without either a driver or rider in charge, and without the mule being securely hitched to a hitching post or by a halter attached to a sufficient weight of not less than 20 pounds, in violation of ordinance section 15 of the traffic code of the city of Birmingham."

This ordinance does not make the offender liable for all damages which may happen while he is violating it; but a violation of the ordinance is negligence per se, and a person proximately injured thereby may recover for such injuries against the violator of the ordinance. Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471; Kansas City R. R. v. Flippo, 138 Ala. 487, 35 So. 457.

The defendant had a right to have the mule on this street, where the injury occurred, but leaving it unhitched without a driver in charge was a violation of the ordinance. This was negligence per se; but was leaving the mule unhitched without a driver the natural, the proximate, cause of his kicking and injuring the plaintiff while passing on his bicycle? This question is not presented by his count. The plaintiff does not rely alone on the violation of the ordinance as the proximate cause of the injury. It will be observed the plaintiff alleges he suffered the injuries "by reason and as a proximate consequence of the defendant's agent *** negligently allowing the mule to stand unhitched to a hitching post or by a halter attached to a weight in the public street," without a driver or rider in charge, and without the mule being securely hitched to a hitching post or by a halter attached to a sufficient weight of not less than 20 pounds, in violation of ordinance section 15, etc. It avers negligent acts coupled with a violation of the ordinance as the proximate cause of the injury. These averments under our system of pleading negligence render this count sufficient and not subject to the demurrer. Clinton Mining Co. v. Loveless, 204 Ala. 77, 85 So. 289; Merriweather v. Sayre, 161 Ala. 441, 49 So. 916; S. S. S. & I. Co. v. Weir, 179 Ala. 227, 60 So. 851; West. Ry. v. McGraw, 183 Ala. 220, 62 So. 772, and authorities supra.

Count E reads as follows: "Plaintiff claims of the defendant the sum of $25,000 as damages, for that heretofore on, to wit, the 9th day of June, 1921, while the plaintiff was riding a bicycle on a public street in the city of Birmingham, to wit, on the south side of Morris avenue between Nineteenth and Twentieth streets, and at a place where he had a right to be, a mule of the defendant, hitched to a wagon of the defendant, which was there and then unlawfully, and in violation of section 25 1/2 of the traffic code of the city of Birmingham, parked or stationed on the south side of Morris avenue between Nineteenth and Twentieth streets, kicked, or shoved, or moved against the plaintiff, and as a proximate consequence thereof the plaintiff was knocked from his bicycle; his right leg was broken; he was permanently injured; he was put to great expense for medicines, medical care, nursing expense, and hospital bills in and about his efforts to cure his said wounds and injuries; he was rendered unable to work and earn wages; he was permanently rendered less able to work and earn wages. And plaintiff avers that at said time Morris avenue between Nineteenth and Twentieth streets was a narrow thoroughfare, with a large amount of traffic moving east and west. And plaintiff avers that he suffered said injuries and damages by reason and as a proximate consequence of the defendant's agent or servant, acting within the line and scope of his authority, negligently, and in violation of an ordinance of the city of Birmingham, parking, placing, or stationing said wagon with said mule hitched thereto on the south side of Morris avenue between Nineteenth and Twentieth streets in the city of Birmingham."

This count, like count B, alleges the violation of a city ordinance; but it does not rest on the violation of the ordinance alone as the proximate cause of the injury. It avers that plaintiff suffered the injures by reason and as a proximate consequence of the defendant's agent "negligently, and in violation of an ordinance, *** parking, placing, or stationing said wagon with said mule hitched thereto on the south side of Morris avenue between Nineteenth and Twentieth streets in the city of Birmingham." It is thus clearly seen the plaintiff in this count alleges the injuries were sustained as a proximate consequence of the defendant's servant, in the scope of his authority, violating this ordinance, and negligently parking, placing, or stationing said wagon with the mule hitched to it on the south side of this avenue, a public street. This averment of negligence is not too general under our practice of pleading; and the demurrers to this count were properly overruled by the court. See authorities supra.

Count D is the same as count E, except in lieu of the last paragraph in E it has the following averment:

"And plaintiff avers that he suffered said injuries and damages by reason and as a proximate consequence of the defendant's agent or servant, acting within the line and scope of his authority, negligently, and in violation of an ordinance of the city of Birmingham, parking, placing, or stationing the said wagon with the said mule hitched thereto on the south side of Morris avenue between Nineteenth and Twentieth streets at a time and place when it blocked the traffic going east, which it there and then did, and obstructed when the other traffic going west on said Morris avenue did cause traffic going east on said Morris avenue to approach the said mule from the rear and

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