Excelsior Steam Laundry Co. v. Lomax

• Decision Date: 14 April 1910
• Citation: 52 So. 347,166 Ala. 612
• Parties: EXCELSIOR STEAM LAUNDRY CO. v. LOMAX.
• Court: Alabama Supreme Court

52 So. 347

166 Ala. 612

EXCELSIOR STEAM LAUNDRY CO. v. LOMAX.

Supreme Court of Alabama

April 14, 1910

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by Carrie Lomax against the Excelsior Steam Laundry Company. From judgment for plaintiff, defendant appeals. Reversed.

Tillman Bradley & Morrow and L. C. Leadbeater, for appellant.

Bowman Harsh & Beddow, for appellee.

SAYRE J.

An ordinance of the city of Birmingham reads thus: "Section 875. Leaving Horse Unattended.--Any person who leaves any horse, mule or team standing attached to any vehicle in the streets without any person being in charge of said horse mule or team, except when being loaded and unloaded, must, on conviction, be punished," etc. The driver in charge of defendant's laundry wagon had left his team standing at the curb, and unattended, while he went into the second story of a building, 40 to 50 yards away and 30 feet from the sidewalk, to deliver some articles from the laundry. There can be no doubt that the team was thus left standing without any person in charge within the meaning of the ordinance. Nor did the occasion fall within the spirit and reasonable interpretation of so much of the ordinance as provides an exception when the vehicle is being loaded and unloaded. The danger of leaving teams standing in streets without any one in charge, and the providence of the ordinance, are obvious and the exception is not to be extended so as to include more than such temporary abandonment of the reins as is reasonably incident to the loading and unloading vehicles by the driver. Without going beyond the exigency of the case presented by the facts shown in the record, we state our opinion that the driver was not, within the meaning of the ordinance, loading or unloading the defendant's vehicle when he went into the house under the circumstances testified to by him.

There was evidence which tended to show that the driver had taken some precaution in the way of securing the horse before he went into the house. Whether, apart from his alleged violation of the ordinance, he was guilty of negligence as charged in the first count, was, therefore, a question for the jury; and it follows that, in giving the general affirmative charge for the plaintiff, the trial court assumed that the ordinance alleged in the third count of the complaint was a valid ordinance in force at the time of the injury complained of. The courts...