Hooks v. Huntsville Ry., Light & Power Co.

• Decision Date: 28 April 1906
• Citation: 41 So. 273,147 Ala. 700
• Parties: HOOKS v. HUNTSVILLE RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

41 So. 273

147 Ala. 700

HOOKS v. HUNTSVILLE RY., LIGHT & POWER CO.

Supreme Court of Alabama

April 28, 1906

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

"Not officially reported."

Action by Clara E. Hooks against the Huntsville Railway, Light and Power Company. From a judgment in favor of defendant plaintiff appeals. Affirmed.

Cooper & Foster, for appellant.

Walker & Spraggins, for appellee.

HARALSON J.

The complaint contains two counts, the first averred simple negligence, and the second counted willfulness of defendant in the infliction of the injury on the plaintiff.

The demurrer interposed to the complaint was overruled which ruling is not assigned as error. The defendant interposed eight pleas to the complaint as a whole, the first being that of the general issue and the others, pleas of contributory negligence of plaintiff in the infliction of the injury. Demurrers were interposed to these pleas except the first.

The judgment entry recites, that the demurrers to these pleas were overruled, and immediately recites, "Thereupon issue being joined on pleas one to eight to the first count and plea one to the second count as amended, thereupon came a jury," etc. It would seem from this latter recital, that the demurrer to the pleas of contributory negligence to the second count were sustained and not overruled. The case was tried on these pleas to the first count, and to the one of the general issue to the second count, and there was an entire absence of any evidence of willfulness or wantonness. So, if the demurrers to these pleas of contributory negligence to the second count were really overruled, it was error without injury, since, as stated, there was no evidence of the averment of willfulness or wantonness and no such insistence is made. Espalla v. Wilson, 86 Ala. 487 5 So. 867; Ph nix Insurance Co. v. Moog, 78 Ala 284, 56 Am. Rep. 31.

There is really no conflict in the evidence for the plaintiff and that for the defendant. The evidence for defendant is full and clear to show that the plaintiff walked in the way of the car that struck her without stopping, looking and listening for its approach; that the track was straight at that point for about 200 feet.

The motorman testified that when his car was coming down the track going westward, he discovered a woman dressed in black walking down Holmes street, on the north side of the track, about half way between the curbing and the track, with an umbrella over her left shoulder; that he slackened the speed of the car, reversed it, put on brakes and rang the bell; that the party suddenly turned, as if to cross the track and came in contact with the car at the front end. Mattie Bush, a passenger on the car, testified, corroborating the motorman.

The plaintiff testified, that as she stepped from the curbing on the...