Lee v. De Bardeleben Coal & Iron Co.

• Decision Date: 10 April 1894
• Court: Alabama Supreme Court
• Parties: LEE v. DE BARDELABEN COAL & IRON CO.

15 So. 270

102 Ala. 628

LEE v. DE BARDELABEN COAL & IRON CO.

Supreme Court of Alabama

April 10, 1894

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action by Sam Lee against the De Bardelaben Coal & Iron Company. From an order granting defendant a new trial, plaintiff appeals. Affirmed.

B. M Allen, for appellant.

Walker Percy, for appellee.

COLEMAN J.

The appellant, Lee, recovered a judgment against the appellee which judgment, upon motion of the appellee, was set aside and a new trial granted. The present appeal is prosecuted from the order of the court granting a new trial. The cause or action was to recover for personal injuries averred to have been sustained by reason of the negligence of the defendant, and was brought under the employers' liability act. The complaint contains three counts. The defendant pleaded the general issue, also contributory negligence, to the whole complaint. To the defendant's plea of contributory negligence, the plaintiff replied "that defendant knew of plaintiff's dangerous position at the time of said collision, and was guilty of wanton recklessness or gross negligence in running said locomotive engine across over, upon, or against plaintiff as aforesaid." The defendant joined issue upon this replication. After the evidence had closed the court charged the jury "that the burden of proof is on the defendant to show contributory negligence," which charge was excepted to by the defendant. The court refused to instruct the jury "that plaintiff could not recover unless the jury was reasonably satisfied from the evidence that some one of the train knew that plaintiff was in a dangerous position," etc. If plaintiff had joined issue upon the defendant's plea of contributory negligence, the burden then would have devolved upon the defendant, to make good this plea. Bromly v Railroad Co. (Ala.) 11 So. 341. Instead of joining issue, the plaintiff replied specially. A replication must either traverse, or confess and avoid, the matter pleaded, or present matter of estoppel. Winter v. Bank, 54 Ala. 172. A general replication is a joinder in issue on the plea. "A special replication is a brief statement in plain language of the facts relied on as an answer to the plea." Code, § 2688. The defendant is not required to offer evidence in support of facts averred in the plea, which are confessed in the replication to the plea. In the case of Dockery v. Day, 7 Port. (Ala.) 518, the plaintiff declared upon a promissory note, to which the defendant pleaded infancy. The plaintiff replied a subsequent promise. This court held that the introduction of the note by the plaintiff did not authorize a recovery; that, in addition, he must prove a subsequent promise, as averred in his replication; and that the defendant was not required to prove the facts admitted in the replication. The principle is recognized in the case of Coster v. Brack, 19 Ala. 210. The replication confessed the facts averred in the plea of contributory negligence, and, to avoid their effect, averred that defendant "knew of plaintiff's dangerous position, *** and was guilty of wanton recklessness in running the said locomotive engine or cars upon the defendant," etc. In the case of Railroad Co. v. Johnston, 79 Ala. 436, the principle was declared that if the complaint averred willful negligence on the part of the conductor, and the proof showed that the conductor was guilty of simple negligence, there was a fatal variance between the complaint and the...