Corona Coal & Iron Co. v. White

• Decision Date: 26 November 1908
• Court: Alabama Supreme Court
• Parties: CORONA COAL & IRON CO. v. WHITE.

48 So. 362

158 Ala. 627

CORONA COAL & IRON CO. v. WHITE.

Supreme Court of Alabama

November 26, 1908

Rehearing Denied Feb. 5, 1909.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Personal injury action by Nora White against the Corona Coal & Iron Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. C Davis and S.D. & J. B. Weakley, for appellant.

Bowman Harsh & Beddow, for appellee.

SIMPSON J.

The appellee sued in this case for damages caused by being struck and knocked down by a wagon and team belonging to the defendant. It is not disputed that the wagon and team were left by the driver, while he went into the house to get a trunk belonging to the shipping clerk of defendant company to take the same to the depot, and that, while left unattended the team ran away and came in collision with the plaintiff who was walking on the street of Corona. The contention of the appellant is that it was entitled to the general affirmative charge, because, first, it was not within the scope of the driver's duties to carry a trunk of one of the employés to the depot; and, second, that the plaintiff was guilty of contributory negligence, in not turning to look when she heard the wagon and team coming down the street.

The evidence is without conflict that this team was under the care and control of Mac Kimbrell, the driver, all of the time, whether he was hauling coal for the defendant or not. He fed, hitched, and unhitched the team; and, whether it was before 7 o'clock in the morning (the hour for regular work) or not, he had charge of the team as the servant and agent of the defendant, and it was his duty not only to care for it, but to see that it was not left unattended on the street, so as to incur the danger of its running away and injuring those who had a right to be on the street.

The evidence in this case is not so clear as to authorize the court to take away from the jury the right to determine whether or not the driver of the team was acting in accordance with the usual custom in the use of the team, and with the acquiescence of the master.

It is negligence for the owner of a horse to leave a team of horses unhitched and unattended on a public street, and he thereby becomes liable for any damage caused by their running away. Dolfinger & Co. v. Fishback, 12 Bush, 474, 1 Am Neg. Cas. 288; Doherty v. Sweetser, 82 Hun (N. Y.) 556, 1 Am. Neg. Cas. 333; Shearman...