Dunn & Lallande Bros. v. Gunn

• Decision Date: 22 November 1906
• Parties: DUNN & LALLANDE BROS. v. GUNN.
• Court: Alabama Supreme Court

42 So. 686

149 Ala. 583

DUNN & LALLANDE BROS. v. GUNN.

Supreme Court of Alabama

November 22, 1906

Rehearing Denied Dec. 21, 1906.

Appeal from Circuit Court, Shelby County; A. H. Alston, Judge.

"To be officially reported."

Action by J. H. Gunn against Dunn & Lallande Bros. Judgment for plaintiff, and defendants appeal. Reversed.

The nature of the suit and the substance of the complaint is sufficiently set out in the opinion. The second count simply alleges that the excavation was made across a road or way which was generally used and traveled by the public in going to and returning from the town or village of Longview, and that it was a much-traveled roadway was obvious and apparent. The third count describes the roadway as a public highway.

Demurrers were interposed to these complaints as follows: "Said complaint shows no facts entitling plaintiff to maintain the suit. No facts are shown imposing any duty on these defendants to plaintiff in reference to the matter complained of. No facts are alleged from which any duty to plaintiff on the part of these defendants arose. There was no averment that the road was a public road. For aught that appears, the plaintiff was a trespasser in the use he was making of the alleged road. For aught that appears, the excavation alleged was only a legitimate use of land by the owner or by his authority. For aught that appears, plaintiff was guilty of negligence which contributed to his injury, in that in the nighttime he undertook to go across private land, where he had no right to be, in a buggy or vehicle, without ascertaining whether he could safely so do. It appears that the excavation alleged was not such as would likely or probably cause injury to one passing along the alleged roadway. It does not appear that the excavation or surroundings were such as would suggest danger, or as required or suggested 'precaution to prevent pedestrians or people driving or on horseback from falling into the same.' Said count shows that the excavation alleged was not the proximate cause of plaintiff's injury. It appears that the proximate cause of plaintiff's injury was the kick of a horse. It does not appear that the negligence of these defendants was the proximate cause of the injury complained of. It appears that the injuries sustained were the result of falling out or partially out of the buggy or vehicle, which it was alleged was caused by the excavation and the action of plaintiff's horse in kicking him. It appears that plaintiff drove or was carried into the excavation of 12 to 15 inches with great force and violence and that his injuries were caused by the great force and violence with which he was driving, or with which his horse was carrying him. It appears that plaintiff was driving in a careless and negligent manner. It does not appear that defendants had notice of any facts that would render the excavation dangerous or likely to produce harm. It does not appear that the excavation was per se dangerous, or that defendant had notice of facts that would probably render it so. It does not appear that the excavation was such as would have suggested danger, or would have been dangerous to an ordinarily prudent person driving in a prudent manner. It does not appear that the plaintiff or the public had any right, by license, prescription, or consent of owner, or otherwise, to travel where plaintiff was traveling, nor any reason why the owner of the land or these defendants owed plaintiff any duty relative thereto." The above demurrers were filed to the second and third counts, with the following additional demurrers to the second count: "It appears that the excavation was made in the repairing or construction of a railroad bed, and it does not appear but that said excavation was on the right of way of the railroad company for whom such excavation was made. It appears that the excavation was on a railroad right of way, and that plaintiff was a trespasser."

After demurrers were overruled, the defendant filed a number of pleas, to some of which demurrers were sustained, which pleas are as follows: Plea 2: "That there was no neighborhood road, or public highway, leading from Longview Station to said Calera and Pelham public road." Plea 5: "That said alleged road, if any, in said complaint mentioned, was so dim and indistinct that it did not appear to ordinary observation to be a road used by the public." Plea 8 "That the place where plaintiff is alleged to have been injured was not in a town, city, or village, and the ground at such time was low and level, and it was not reasonably obvious to the defendants that such ditch would be dangerous to persons passing along said alleged road in vehicles; said ditch or excavation being wide and shallow, with sloping sides." Plea 9: "At the time it is alleged that defendants cut said ditch it was not reasonably obvious to them that such ditch would be dangerous to persons crossing the same in vehicles on said alleged road." Plea 10 "That said alleged neighborhood road was not a public highway, either by grant, prescription, or dedication, but was only used by permission or toleration of the owner of the land over which the same passed, and that at the time of plaintiff's alleged injury the owner had reclaimed the same and revoked said permission."

The other pleas, to which demurrers were overruled, set up that at the time the alleged ditch was cut the defendants had no notice or knowledge of any road for vehicles along or over the land at the place where it is alleged that plaintiff was injured; that at the time the ditch was cut it was done by authority of the owner of the land, and at that time it did not appear that there was any road for vehicles, and no marks or other sign to indicate that it was used as a road for vehicles, and that defendants had no knowledge that it was so used; that the place where said ditch was cut was a place of natural drainage, and that the ditch was excavated only 10 inches and with sloping sides, and was used to facilitate the drainage, and was not apparently dangerous to persons passing over or along said land; that it was not dangerous, as it was excavated, to persons crossing the same on vehicles. The other pleas were pleas of contributory negligence, setting up that there was another and safe way known to plaintiff, and that he negligently used this way in the nighttime and without proper care to ascertain if it was all right, rather than the known, safe way.

Evidence was introduced tending to support the allegations of the complaint, and there was evidence also tending to support the pleas to which demurrers were not sustained. The assignments of error relating to the admission of testimony are sufficiently set out in the opinion. In answering question numbered 2 in the opinion, the plaintiff stated that his practice as a physician had decreased 20 per cent. There was motion to exclude this answer, which was overruled. The witness made the same answer to question 3 as noted in the opinion. Question No. 5, noted in the opinion, was answered as follows: "My practice before I was injured amounted to about $150 on an average." Motion was made, and overruled, to exclude both of these answers, separately. The following questions were propounded to E. J. Dunn, a witness for the defendant, and objection was sustained to each separately: "While the work was progressing, during the construction of said railroad, and before said ditch was cut and before plaintiff was injured, was Mr. P. H. Lallande notified in any manner, or informed, that there was a neighborhood road, or a road for the passing of vehicles over said land, which was crossed by said ditch?" "Was the firm of Dunn & Lallande Bros. informed or notified in any way, while said ditch was being constructed, that the same crossed a road, a neighborhood road, or a road used by vehicles?" Also, if his firm had ever been notified of the existence of any such road at any time before the plaintiff was injured.

At the conclusion of the testimony, the plaintiff requested the following charges which the court gave:

"(1a) The court charges the jury that if they are reasonably satisfied from the evidence that the plaintiff, when traveling said road at the time when he attempted to cross said ditch, acted as a reasonably prudent man would have acted under the same circumstances, then he was not guilty of negligence."

"(2b) The burden of proof is on the defendant to make out their pleas of contributory negligence to the reasonable satisfaction of the jury."

"(3c) The court charges the jury that if they are reasonably satisfied from the evidence that the plaintiff, in attempting to cross said ditch, acted as a reasonably prudent man would have acted under similar circumstances, then he was not guilty of contributory negligence."

"(4d) The court charges the jury that it was not necessarily negligent as a matter of law for the plaintiff to have driven as the evidence showed he was driving at the time he was attempting to cross said ditch."

"(5e) The court charges the jury that it is for them to decide, from all the evidence in the case, whether the plaintiff was guilty of contributory negligence as averred in the complaint."

The following charges were refused to the defendants:

(1) General affirmative charge.

"(2) The court charges the jury that if the plaintiff saw and crossed the ditch a short while before the injury, and was in a few yards of the place of such injury, and at the time of the injury drove into the ditch in the dark and without a light, and that, had defendants had a light, he would have seen the ditch and the injury been avoided, the jury must find for the defendants.

"(3) The court charges the jury that if they believe the evidence of Dr....