Edwards v. Earnest

• Court: Supreme Court of Alabama
• Citation: 89 So. 729,206 Ala. 1
• Docket Number: 6 Div. 148
• Parties: EDWARDS v. EARNEST.
• Decision Date: 07 April 1921

89 So. 729

206 Ala. 1

EDWARDS
v.
EARNEST.

6 Div. 148

Supreme Court of Alabama

April 7, 1921

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by Venoah Earnest against W.S. Edwards, for damages for personal injuries sustained in an automobile accident. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Percy, Benners & Burr, of Birmingham, for appellant.

Black, Altman & Harris, of Birmingham, for appellee.

GARDNER, J.

Mrs. Venoah Earnest (plaintiff in the court below), while walking near the intersection of Avenue F and Twenty-First street in the city of Birmingham, was struck by an automobile truck, the property of the defendant, and operated at the time by a young man named Robinson, who was then in defendant's employ; and this suit was brought to recover damages for the injuries sustained. Plaintiff recovered a judgment in the sum of $5,000, from which defendant prosecutes this appeal.

The cause was tried upon counts 2 and 3, the general issue and plea of contributory negligence. Count 2, after averring the operation of the motor vehicle by defendant's servant or agent upon the public highway in the city of Birmingham, ran against plaintiff and knocked her down, causing injuries, then alleges:

"And plaintiff avers that the said motor vehicle at the time it struck plaintiff, or just immediately prior thereto was being operated along the public highway of the city of Birmingham in violation of section 1842 of the City Code of Birmingham 1917, in this: That said motor vehicle was then and there being operated recklessly or at a rate of speed greater than is reasonable and proper, having regard for the width, traffic conditions and use of the said highway at said place, or so as to endanger the life or limbs of any person using the said highway at said point or place and time."

It is insisted the demurrer to this count should have been sustained for its failure to aver that the ordinance was in force at the time plaintiff received her injuries, under the authority of B.R., L. & P. Co. v. Fuqua, 174 Ala. 631, 56 So. 578. That decision was rendered prior to General Acts 1915, p. 297, § 7, requiring courts to take judicial knowledge of ordinances of cities of population of 100,000 or more, and therefore is without application here. This assignment of demurrer was properly overruled. Flowers v. City of Birmingham, 17 Ala.App. 138, 83 So. 36, and authorities there cited.

The further insistence is made that the [89 So. 730] alternative averment, "or just immediately prior thereto," was insufficient to show a violation at the time of the injury, and the argument is made that the word "immediately" is of relative signification, and never employed to designate an exact portion of time, citing McLure v. Colclough, 17 Ala. 98, where it was said this word is used with more or less latitude by universal consent according to the subject to which it is applied. The language used must be given an interpretation in keeping with sound reason and common sense, and construed in connection with the other language of the complaint. When so construed it manifestly means a very few seconds before the moment of collision, and we are well satisfied as to the sufficiency of this averment.

Count 3 was a wanton count, and the sufficiency of its averments is likewise brought into question. It is conceded by counsel for appellant that the count is substantially in the form of the complaint held good in Yarbrough v. Carter, 179 Ala. 356, 60 So. 833, but it is argued that this authority is erroneous and should be overruled. We have given careful consideration to the argument attacking the Yarbrough Case upon this point, but are unwilling to depart therefrom. The holding relates merely to a question of practice, and while we are satisfied with the holding, yet were it of doubtful soundness we would hestitate to disturb the decision upon such a question, especially when it has doubtless been followed for many years by the bench and bar.

We are inclined to the view that pleas 3 and 6 were subject to the demurrer interposed thereto, but whether so or not, we are persuaded defendant received the full benefit of the defense sought to be set up therein by plea 7, as to which demurrer was overruled.

Defendant requested the affirmative charge upon the theory that at the time of the accident Perry Robinson, the driver of the truck, was acting without the line and scope of his employment. Defendant was engaged in the automobile business at 213 South Twenty-First street in Birmingham, and Robinson was in his employ as stockroom clerk, and on this occasion had left defendant's place of business with the auto truck to get some inner tubes from the Perry Supply Company, about 3 1/2 blocks north of defendant's place, which errand was within the line of his...