Eady v. Heaton

• Decision Date: 10 March 1932
• Docket Number: 7 Div. 83.
• Citation: 224 Ala. 327,140 So. 408
• Parties: EADY v. HEATON.
• Court: Alabama Supreme Court

140 So. 408

224 Ala. 327

EADY v. HEATON.

7 Div. 83.

Supreme Court of Alabama

March 10, 1932

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Action for damages for personal injury by J. W. Heaton against Charles Eady. From a judgment for plaintiff, defendant appeals.

Affirmed.

C. J. Griffith, of Birmingham, for appellant.

E. O. McCord & Son, of Gadsden, for appellee.

BOULDIN, J.

Count 1 of the complaint alleges:

"*** On or about the 26th day of August 1930 plaintiff was in the act of walking across Broad Street in Gadsden, Alabama, at or in proximity to the junction of said Broad Street and Third Street, both of which are public thoroughfares in said city, and at said time and place the defendant was operating an automobile, and

"Plaintiff avers that the defendant then and there negligently ran said automobile against, upon or over the plaintiff (here follows recital of injuries); all of which said injuries and damages plaintiff avers were proximately caused by the negligence of the said Charles Eady in that at said time and place he so negligently handled, managed, operated or controlled the automobile which he was driving as that it ran against, upon or over plaintiff as aforesaid," etc.

This count sufficiently avers time and place, discloses the duty owed by an automobile driver to a pedestrian while in lawful use of a public street, and a breach of such duty in the operation of the automobile.

It is not demurrable for generality in averment of negligence. It does not set forth the quo modo of negligent operation; hence is not demurrable for insufficient averment in such cases. Louisville & Nashville R. Co. v. Church, 155 Ala. 329, 46 So. 457, 130 Am. St. Rep. 29; Dwight Manufacturing Co. v. Holmes, 198 Ala. 590, 73 So. 933; Birmingham Ry. L. & P. Co. v. Barrett, 179 Ala. 274, 60 So. 262.

The verdict, as disclosed on its face, was returned on count 1. Rulings on other counts adverse to defendant were immaterial. No other questions are raised.

Affirmed.

ANDERSON, C.J., and GARDNER and FOSTER, JJ., concur.