Cook v. Sheffield Co.
| Decision Date | 30 October 1921 |
| Docket Number | 8 Div. 321. |
| Citation | 91 So. 473,206 Ala. 625 |
| Parties | COOK v. SHEFFIELD CO. |
| Court | Alabama Supreme Court |
Rehearing Denied Nov. 17, 1921.
Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.
Action by Frank Cook against the Sheffield Company for damages for injuries resulting from falling into a ditch. Judgment for the plaintiff, which on motion was set aside, and plaintiff appeals. Reversed and remanded.
Simpson & Simpson, of Florence, for appellant.
Andrews & Peach, of Sheffield, for appellee.
It is unquestionably the law that, while negligence may be charged in general terms, facts must be averred sufficient to bring the plaintiff within the protection of the negligence charged; that is, must establish a duty owing by the defendant to the plaintiff to do or not to do the thing complained of as the proximate cause of the injury. For instance, if the plaintiff charges a railroad with negligently injuring him while upon its track, the complaint must bring him within the protection of the negligence charged by negativing the fact that he was a trespasser, or if he sues for injuries received on a train through the negligence of the agents or servants operating same, he must aver that he was a passenger or occupied such a relation as to bring him within the protection of the negligence charged etc.
We think, however, that count 16 of the complaint sufficiently brings the plaintiff within the protection of the negligence charged, which is leaving open a ditch or excavation in the street of the city without a proper warning signal and into which the plaintiff fell or stepped and was injured, and that his injury was proximately caused by the defendant's failure to place the signal at the place of danger. True, the complaint charges a failure to place a light and which would perhaps be more necessary and effective at night than in the daytime, but this is a question pertaining to the negligence rather than relationship, and is a matter of proof, and not pleading, as the time when the injury occurred and whether or not it was light or dark goes to the establishment of the charge of a negligent failure to place the light and whether or not said failure was the proximate cause of the injury, as charged in the complaint. The averment of a negligent failure to place the light there carries with it a reasonable necessity for doing so, and, if conditions were such that there was no need for a light, or guards or other signals made the light unnecessary, these facts would refute the necessity for the light and defeat the establishment of proximate negligence as charged in the complaint. In other words, this court cannot hold, as matter of law, that the defendant owed the plaintiff no duty, even in the daytime, to place a light at the place in question. Of course, if the surroundings were such that the light was not necessary then the...
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Mackintosh Co. v. Wells
...... duty owed by defendant to do or not to do the thing. complained of as the proximate cause. Cook v. Sheffield. Co., 206 Ala. 625, 91 So. 473; Ala. Fuel & Iron Co. v. Ward, 194 Ala. 242, 251, 69 So. 621. The demurrers to. said counts were ......
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American Ry. Express Co. v. Reid
...... the plaintiff to do or not to do the thing complained of as. the proximate cause of the injury. Cook v. Sheffield. Co., 206 Ala. 625, 91 So. 473; Montgomery Light &. Water Power Co. v. Thombs, 204 Ala. 678, 87 So. 205;. Mobile Light & R. . . ......
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Mullinax v. Hufham
...is to be sustained on the ground that the verdict is contrary to the evidence. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Cook v. Sheffield Co., 206 Ala. 625, 91 So. 473; Alabama Great Southern R. Co. v. Hamilton, 135 Ala. 343, 33 So. 157; Birmingham Railway, Light & Power Co. v. Willis, 143 A......
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McLemore v. International Union, United Auto., Aircraft and Agr. Implement Workers of America, C.I.O., 8 Div. 814
...the motion, will not indulge in favor of such other ground the presumption which we would accord the ground specified. Cook v. Sheffield Co., 206 Ala. 625, 626, 91 So. 473.' It is next contended that the questioned argument was provoked by improper argument of opposing counsel and that it w......