Cook v. Standard Oil Co.
| Decision Date | 19 December 1916 |
| Docket Number | 3 Div. 238 |
| Citation | 73 So. 763,15 Ala.App. 448 |
| Parties | COOK v. STANDARD OIL CO. |
| Court | Alabama Court of Appeals |
Appeal from City Court of Montgomery; Gaston Gunter, Judge.
Action by J.H. Cook against the Standard Oil Company for damages for a collision. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Ed. S Watts, of Montgomery, for appellant.
Blakey & Strasburger and W.F. Thetford, Jr., all of Montgomery, for appellee.
Appellee's insistence that the ruling of the court on the demurrer to the special plea, if error intervened, must be pronounced error without injury, is founded on the assumption that the evidence shows without dispute that the plaintiff was guilty of negligence which proximately contributed to the injury complained of, and does not take into account the doctrine often announced that "contributory negligence is a special and affirmative defense, and must be specially pleaded with particularity, and no other acts than those specially pleaded can be proved on trial, and, if proved cannot be made the predicate for a verdict." Blalack v. Blacksher, 11 Ala.App. 545, 66 So. 863; South Ry. Co. v. Shelton, 136 Ala. 191, 34 So. 194; Mobile Electric Co. v. Sanges, 169 Ala. 356, 53 So. 176, Ann.Cas.1912B, 461.
A plea of contributory negligence, to withstand demurrer, must state the facts constituting the negligence, and the facts must be such as that the conclusion of negligence follows as a matter of law. Johnson v. L. & N.R.R. Co., 104 Ala. 241, 16 So. 75, 53 Am.St.Rep. 39; Tenn. C., I. & R.R. Co. v. Herndon, 100 Ala. 451, 14 So. 287; Johnson v. B.R., L. & P. Co., 149 Ala. 529, 43 So. 33; B.R., L. & P. Co. v. Barrett, 179 Ala. 279, 60 So. 262.
It takes no argument to show that the defendant's pleas numbered 3 and 4 do not meet these requirements, and that they are guilty of stating the mere conclusions of the pleader. L. & N.R.R. Co. v. Calvert, 170 Ala. 565, 54 So. 184; B.R., L. & P. Co. v. Saxon, 179 Ala. 136, 59 So. 584; Southern Cotton Oil Co. v. Walker, 164 Ala. 33, 51 So. 169.
The plaintiff had the right to assume that the driver of the wagon would rein his team to the right-hand side of the road so as to permit the plaintiff's vehicle to pass, until it became obvious that the driver was making no effort to do so or the danger of a collision was imminent. B.R., L. & P. Co. v. Williams, 158 Ala. 389, 48 So. 93. The defendant's plea A is lacking...
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