Jordan v. Alabama City, G. & A. Ry. Co.

• Decision Date: 05 December 1912
• Citation: 179 Ala. 291,60 So. 309
• Parties: JORDAN v. ALABAMA CITY, G. & A. RY. CO.
• Court: Alabama Supreme Court

60 So. 309

179 Ala. 291

JORDAN v. ALABAMA CITY, G. & A. RY. CO.

Supreme Court of Alabama

December 5, 1912

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by S.E. Jordan against the Alabama City, Gadsden & Attalla Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The following are the pleas referred to in the opinion: (3) "Contributory negligence, which proximately contributed to his injuries, in that, while defendant's electric car was approaching plaintiff, who was driving the said horse and buggy, plaintiff negligently jerked his horse, causing it to back the buggy immediately in front of defendant's moving car, or negligently so managed or controlled his said horse as to permit said horse to back said buggy on defendant's said track immediately in front of said moving car, whereupon defendant's said car struck said buggy, inflicting the injuries complained of." The fourth ground of demurrer to this plea was that the plea did not show in what respect plaintiff was negligent in managing or controlling his horse. Plea 4: "Plaintiff himself was guilty of negligence which proximately contributed to his injuries, in that he so negligently or carelessly managed the horse which he was driving to said buggy as to permit or allow said horse to back said buggy on defendant's track immediately in front of said moving car, whereupon said car struck said buggy inflicting the injuries complained of." (5) "Plaintiff himself was guilty of negligence, which proximately contributed to his injuries, in that he was driving said horse and buggy, and, as defendant's car approached plaintiff, said horse and buggy were not on, but some distance away from, defendant's track, and plaintiff so negligently managed said horse as to permit it to back said buggy some distance onto defendant's said track immediately in front of a moving car, whereupon said car struck said buggy, inflicting the injuries complained of."

The following charges were given at defendant's instance: (4) "If, after considering all the evidence, the jury's minds are in a state of doubt and uncertainty that they are unable to reasonably determine whether plaintiff's injuries proximately resulted from the negligence of defendant's servants, the verdict should be for the defendant." (11) "The burden of proof is on the plaintiff to satisfy the jury reasonably that plaintiff's injuries resulted from the negligence of defendant's servants in charge of said car, and, unless the evidence so satisfies the jury, plaintiff is not entitled to recover." (19) "The filing of the plea of the general issue by the defendant cast the burden of satisfying the jury reasonably of the truthfulness of the material averments of the complaint, and unless the jury has so carried the burden, and so satisfied the jury, plaintiff is not entitled to recover." (1) "If Jordan had driven his horse into Fourteenth street, away from the car track the motorman was under no duty to check the speed of the car until he saw that the horse was backing towards the track and if, after he discovered this, he stopped the car as quickly as he could, plaintiff cannot recover in this action." (7) "If the injury in this case resulted from the backing of the buggy by the horse plaintiff was driving against the car, and the motorman was without fault in bringing his car to a stop, the jury should return a verdict for the defendant." (8) "The motorman was under no duty to check or stop his car until the danger of a collision arose, and if thereafter the motorman used all the means at hand to stop his car, plaintiff is not entitled to recover in this action." (21) "The court charges the jury that if, while defendant's electric car was approaching plaintiff, he negligently jerked his horse, causing it to back the buggy immediately in front of the moving car, or negligently so managed or controlled his said horse as to permit said horse to back said buggy on defendant's said track immediately in front of said moving cars, whereupon defendant's said car struck said buggy, inflicting the injuries complained of, plaintiff would not be entitled to recover on the first count."

Amos E. Goodhue and Dortch, Martin & Allen, all of Gadsden, for appellant.

Hood & Murphree, of Gadsden, for appellee.

McCLELLAN J.

Action for damages resulting from the collision of a street car and the buggy in which plaintiff (appellant) was when injured. The complaint contained two counts; the first charging, in general terms, simple negligence, and the second, wanton or willful injury.

The report of the appeal will contain special pleas 3, 4, and 5 addressed to the first count which purported to set up contributory negligence. Plea 3 was subject to ground 4 of the demurrer. This plea is no stronger than its weakest alternative (Osborne v. Ala. S. & W. Co., 135 Ala. 571, 33 So. 687), viz., "or negligently so managed or controlled his said horse as to permit said horse to back said buggy on defendant's said track immediately in front of said moving car." There is in this alternative averment an entire absence of allegation of fact to which the law could...