Johnson v. Birmingham Ry., Light & Power Co.

CourtAlabama Supreme Court
Writing for the CourtDOWDELL, J.
Citation43 So. 33,149 Ala. 529
Decision Date05 February 1907
PartiesJOHNSON v. BIRMINGHAM RY., LIGHT & POWER CO.

43 So. 33

149 Ala. 529

JOHNSON
v.
BIRMINGHAM RY., LIGHT & POWER CO.

Supreme Court of Alabama

February 5, 1907


Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by J. H. Johnson, as administrator of Charles F. Bridgman, deceased, against the Birmingham Railway, Light & Power Company, to recover damages for defendant's alleged negligence in causing the death of plaintiff's intestate. From a judgment for defendant, plaintiff appeals. Affirmed.

The first count was for willful, wanton, or intentional negligence. The second and third counts were in simple negligence. The fourth count sufficiently appears from the opinion. It is deemed unnecessary to set out any of the counts of the complaint, as they are sufficiently discussed in the opinion. After defendant's demurrers were overruled to these counts, defendant pleaded: (1) The general issue. (2) "For further plea and answer to the second and third counts of the complaint, severally and separately says that plaintiff's intestate was himself guilty of negligence which proximately contributed to his injuries and death, in this: Plaintiff's intestate negligently remained on said track, in dangerous proximity to the car or train then and there approaching, after the discovery by defendant's servants or agents in charge of the said car or train of the peril of plaintiff's intestate. (3) To the second and third counts of the complaint, separately and severally, defendant says that plaintiff's intestate was himself guilty of negligence which proximately contributed to his injuries and death, in this: plaintiff's intestate negligently went or negligently remained on said track without looking or listening for the train then and there approaching; or in this: plaintiff's intestate negligently went or negligently remained on said track when the said train which collided with him was in dangerous proximity to him, after having discovered that such train was in dangerous proximity; or in this: plaintiff's intestate negligently went or negligently remained on said track after having negligently failed to ascertain the approach of said train." Demurrers were interposed as follows: To the second plea: "Because one of the counts which said plea purports to answer charges defendant with wantonness or intentional wrong. (2) Contributory negligence is no answer to wanton or intentional wrong. (3) Said plea is confused as to what part of the complaint it purports to answer." And to the third plea: "Because the plea is uncertain and indefinite. It does not appear with sufficient certainty whether intestate negligently remained on said track." And to the second plea in so far as it purports to answer the second and third counts all the above grounds, and in addition thereto: "Because it appears from the second count that the negligence counted on was subsequent to the discovery of intestate's peril, and that same was the proximate cause of his injuries. Because said plea is no more than a denial of a material part of said count. Because it does not appear that intestate had a reasonable opportunity to extricate himself from said peril after same was discovered as aforesaid." All the above grounds of demurrer were separately filed to the third plea as an answer to the second and third counts of the complaint. The evidence is set out in the opinion of the court, as are the questions reserved on objection to evidence.

Pinkney Scott and Bowman, Harsh & Beddow, for appellant.

Tillman, Grub, Bradley & Morrow, for appellee.

DOWDELL, J.

The fourth count of the complaint, to which a demurrer was sustained, after averring in general terms the negligent operation of the car or cars by defendant's servant, contained the following averment: "And plaintiff avers that said car or cars were negligently operated in this: that it was a dark night, said car or cars did not have a sufficient headlight, and were being run rapidly, and said negligence proximately caused said intestate's said injuries and death, to the damage of plaintiff as aforesaid." Where a complaint in general terms avers negligence, and then avers the particular act or acts constituting the alleged negligence without more, unless such act or acts in themselves amount to negligence, the complaint is demurrable. Neither of the acts averred in the fourth count, whether taken separately or together, can be said, as a matter of law, to constitute negligence, and there is no averment that they were done or performed in a negligent manner.

The second and third assignments of error relate to the action of the court in overruling plaintiff's demurrers to defendant's pleas numbered 2 and 3. In both and each of said pleas the defense of contributory negligence is attempted to be set up, and it sufficiently appears that each was addressed as an answer to the second and third counts of the complaint separately and severally. It is insisted in argument that the third plea is bad, in that the alleged acts of contributory negligence are averred in the alternative. If it should be conceded that the plea is in this respect faulty, the answer is that no such objection was raised by the demurrer.

While the second and third counts of the complaint count on negligence of the defendant's servant after discovery by him of the peril of plaintiff's intestate, they are none the less counts in simple negligence. One of the grounds of the demurrer to the second and third pleas, which set up contributory negligence, is to the effect that the negligence counted on in the second and third counts of the complaint was subsequent to the discovery of intestate's peril, and that same was the proximate cause of his injury. We do not understand the rule to be that an averment in a...

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41 practice notes
  • Dwight Mfg. Co. v. Holmes, 7 Div. 832
    • United States
    • Supreme Court of Alabama
    • December 21, 1916
    ...is demurrable, unless the acts so specified, in themselves, constitute negligence as a matter of law. Johnson v. B.R., L. & P. Co., 149 Ala. 529, 43 So. 33; B.R., L. & P. Co. v. Barrett, 179 Ala. 279, 60 So. 262; Knight v. T.V.R.R. Co., 190 Ala. 140, 67 So. 238; B.R., L. & P. Co. v. Wilcox,......
  • Western Ry. of Ala. v. Brown, 5 Div. 793
    • United States
    • Supreme Court of Alabama
    • February 23, 1967
    ...more, unless such act or acts in themselves amount to negligence, the complaint is demurrable. Johnson v. Birmingham Ry., L. & P. Co., 149 Ala. 529, 533, 43 So. 33; Thompson v. White, 274 Ala. 413, 417, 149 So.2d Defendant says that, in Count One, plaintiff does not allege the breach of any......
  • Merchants' Bank v. Sherman, 1 Div. 403
    • United States
    • Supreme Court of Alabama
    • December 16, 1926
    ...v. Littleton, 201 Ala. 141, 143, 77 So. 565; B.R.L. & P. Co. v. Cockrum, 179 Ala. 372, 376, 381, 60 So. 304; Johnson v. B.R.L. & P. Co., 149 Ala. 529, 43 So. 33; Long v. 184 Ala. 236, 63 So. 982; T.C.I. & R. Co. v. Moore, 194 Ala. 134, 69 So. 540; T.C.I. & R. Co. v. Smith, 171 Ala. 251, 255......
  • Southern Ry. Co. v. Miller, 6 Div. 306.
    • United States
    • Supreme Court of Alabama
    • March 23, 1933
    ...made by the proof, which must rest upon negligent conduct after the discovery of plaintiff's peril. Johnson v. Birmingham R., L. & P. Co., 149 Ala. 529, 43 So. 33. The argument is that the engineer saw the peril and the signal of the brakeman, [147 So. 151] Allen, and failed to make proper ......
  • Request a trial to view additional results
41 cases
  • Dwight Mfg. Co. v. Holmes, 7 Div. 832
    • United States
    • Supreme Court of Alabama
    • December 21, 1916
    ...is demurrable, unless the acts so specified, in themselves, constitute negligence as a matter of law. Johnson v. B.R., L. & P. Co., 149 Ala. 529, 43 So. 33; B.R., L. & P. Co. v. Barrett, 179 Ala. 279, 60 So. 262; Knight v. T.V.R.R. Co., 190 Ala. 140, 67 So. 238; B.R., L. & P. Co......
  • Western Ry. of Ala. v. Brown, 5 Div. 793
    • United States
    • Supreme Court of Alabama
    • February 23, 1967
    ...more, unless such act or acts in themselves amount to negligence, the complaint is demurrable. Johnson v. Birmingham Ry., L. & P. Co., 149 Ala. 529, 533, 43 So. 33; Thompson v. White, 274 Ala. 413, 417, 149 So.2d Defendant says that, in Count One, plaintiff does not allege the breach of......
  • Merchants' Bank v. Sherman, 1 Div. 403
    • United States
    • Supreme Court of Alabama
    • December 16, 1926
    ...201 Ala. 141, 143, 77 So. 565; B.R.L. & P. Co. v. Cockrum, 179 Ala. 372, 376, 381, 60 So. 304; Johnson v. B.R.L. & P. Co., 149 Ala. 529, 43 So. 33; Long v. 184 Ala. 236, 63 So. 982; T.C.I. & R. Co. v. Moore, 194 Ala. 134, 69 So. 540; T.C.I. & R. Co. v. Smith, 171 Ala. 251, 2......
  • Southern Ry. Co. v. Miller, 6 Div. 306.
    • United States
    • Supreme Court of Alabama
    • March 23, 1933
    ...by the proof, which must rest upon negligent conduct after the discovery of plaintiff's peril. Johnson v. Birmingham R., L. & P. Co., 149 Ala. 529, 43 So. 33. The argument is that the engineer saw the peril and the signal of the brakeman, [147 So. 151] Allen, and failed to make proper e......
  • Request a trial to view additional results

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