Jefferson Dairy Co. v. Thomas

• Decision Date: 21 January 1926
• Docket Number: 6 Div. 508
• Citation: 214 Ala. 305,107 So. 449
• Parties: JEFFERSON DAIRY CO. v. THOMAS.
• Court: Alabama Supreme Court

107 So. 449

214 Ala. 305

JEFFERSON DAIRY CO. v. THOMAS.

6 Div. 508

Supreme Court of Alabama

January 21, 1926

Rehearing Denied March 25, 1926

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damages by Nora Thomas, as administratrix of the estate of Elizabeth F. Thomas, deceased, against the Jefferson Dairy Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Mullins & Jenkins, of Birmingham, for appellee.

GARDNER J.

A team of horses hitched to a delivery wagon of the Jefferson Dairy Company ran away, in the absence of the driver, on Forty-Eighth street in the city of Birmingham, and, turning into Second Avenue North, collided with a huckster's wagon, near which Mrs. Elizabeth Thomas was standing, causing the latter wagon to strike her, as a result of which she died in a few days.

This suit by the administratrix of her estate followed, resting principally upon the alleged negligence of the driver of the team in leaving the team unhitched and unattended in the street. Corona Coal Co. v. White, 48 So. 362, 158 Ala. 627, 20 L.R.A. (N.S.) 958; Excelsior L. Co. v Lomax, 52 So. 347, 166 Ala. 612; ordinance, city of Birmingham.

Defendant interposed numerous pleas of contributory negligence, among which were pleas A-2, E, and F, which were sustained, and the cause tried upon issue joined upon these pleas in connection with the plea of the general issue, resulting in a judgment for the plaintiff, from which defendant has prosecuted this appeal.

These pleas, in substance, set up the alleged negligence of plaintiff's intestate in standing in the center of the street, purchasing fruit from the huckster's wagon and obstructing the street, and preventing free passage of the traffic thereon, and, with knowledge of this situation negligently failed to make any observation whatever for approaching teams. Defendant also relied upon a violation of the city ordinance as to street obstruction. We are of the opinion that in substantial form defendant had the benefit of pleas B, C, and D in the pleas sustained, above mentioned and a consideration of the sufficiency of these pleas is therefore unnecessary.

A different conclusion, however, is reached as to plea A-1. This plea adopts the allegations of plea 12, which latter plea sets up the negligence of the plaintiff's intestate in standing in the center of the street in the path and line of traffic which she knew would likely use said street, and with her back to said line of traffic, purchasing vegetables from a wagon standing in the middle of the street and unlawfully obstructing the same, and adds thereto the following averment:

"And defendant avers that said intestate was aware of the approach of said team of defendant in time to have stepped out of the path of the same and prevented being struck thereby, but negligently failed to do so."

The counts of the complaint, to which this plea was interposed, each alleged that the defendant's team was unattended, and also disclosed that the team was running away, and the sufficiency of the plea is to be considered in the light of these averments of the complaint. We are of the opinion the above-quoted averments added to plea 12 were not subject to any objection interposed thereto by demurrer. It is insisted that the averment is objectionable as a mere conclusion of the pleader. This objection is answered by the language of this court in discussing the pleas of contributory negligence there interposed in the case of Pace v. L. & N.R.R. Co., 52 So. 52, 166 Ala. 519, wherein the court said:

"A statement, in form a conclusion, approaches occasionally so nearly the ultimate facts as to make the effort at further analysis futile for the practical purposes of pleading. An averment of negligence, whether stated as a cause of action or as a defense, is not required to be as specific as the proof essential to support it."

In the Pace Case, supra, it was argued the pleas were defective in failing to aver that the plaintiff had time to do that which he was charged as having negligently omitted. The pleas were sustained, notwithstanding, upon the theory that the...