Hines v. Laurendine

• Decision Date: 13 January 1920
• Docket Number: 1 Div. 359
• Citation: 17 Ala.App. 350,84 So. 780
• Parties: HINES, Director General of Railroads v. LAURENDINE.
• Court: Alabama Court of Appeals

84 So. 780

17 Ala.App. 350

HINES, Director General of Railroads v. LAURENDINE.

1 Div. 359

Court of Appeals of Alabama

January 13, 1920

Rehearing Denied Feb. 10, 1920

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by Peter B. Laurendine against Walker D. Hines, as Director General of Railroads, for damages for injuries to an automobile truck. From a judgment for plaintiff, defendant appeals. Affirmed.

The pleadings for the plaintiff sufficiently appear from the opinion of the court, as do assignments of error 1, 2, 4, 5 8, and 9. The demurrers to the first count, made the basis of assignments 3, 6, and 10 are as follows:

No facts are stated showing a duty arising on the part of defendant relative to plaintiff's automobile; it is not shown by what means plaintiff's automobile became stalled on the track of the railroad; it is not shown that the stalling of the automobile was not plaintiff's fault because it is not alleged whether the negligence complained of was initial or subsequent in nature.

The first plea sets up contributory negligence, in that plaintiff's agent, acting in the line and scope of his authority, while driving said automobile, immediately before and at the time of the occurrence complained of, attempted to cross the track in front of a moving engine without first stopping, looking, and listening.

The third plea sets up the same fact, and alleges that said agent negligently drove said automobile upon the track, and stopped said automobile upon said track in front of the approaching train, which struck it. The fifth plea is the same as the third, except that it adds the following:

"After becoming conscious of the immediate approach of the train and until struck by said train."

The sixth plea sets up that said agent negligently failed to stop said automobile before reaching the said railroad track, and negligently failed to permit said automobile to cross said track, which defendant avers could have been done by permitting it to continue at the same rate of speed with which it approached said track, and which would have permitted it to clear said track before being struck by the approaching train, but in some way stopped said automobile immediately in front of the approaching train, and so closely thereto as that it was impossible for the operatives of the train to stop the same after seeing the automobile stop upon the track before striking it.

The other facts sufficiently appear.

Rich &amp Hamilton, of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

MERRITT J.

The complaint as originally filed contained four counts. The first claimed damages for the negligent operation by defendant of one of its trains, in that it was caused to collide with plaintiff's truck automobile, which had stalled on defendant's track. The third count was for damages for conversion by plaintiff of defendant's truck automobile. The fourth count claimed damages for the breach of an agreement entered into by the defendant, whereby it promised to put in repair the automobile truck which had been injured by the collision. The second count was in trespass and was withdrawn by the plaintiff. Counts 5 and 6 were afterwards added; count 5 charging subsequent negligence, and count 6 charging wanton and willful negligence. The general charge was for defendant as to count 6.

Assignments of error 1, 2, 4, 5, 8, and 9 are based on the proposition that counts 2 and 4 were improperly joined. Code 1907, § 5329, provides that "all actions ex delicto" may be joined with actions "ex contractu" arising out of the same transaction or relating to the same subject-matter. A reading of these two counts shows that the alleged injury to the truck gave rise to the alleged promise to make the repair, that the facts in one instance gave rise to the facts in the other instance, and all growing out of one and the same transaction, and relating to the same subject-matter, the damage incident to the injury of plaintiff's auto truck. These assignments of error are not well taken. Union Marine Insurance Co. v. Charlie's Transfer Co., 186 Ala. 443, 65 So. 78; Gambill v. Fox Typewriter Co., 190 Ala. 36, 66 So. 655.

As we construe count 1, it is a count in simple negligence, and as such embraces initiative and subsequent negligence. L. &amp N.R.R. Co. v. Calvert, 172 Ala. 600, 55 So. 812. The allegation in the count that plaintiff's auto "became stalled on the track" in no wise changed this to...