Littlejohn v. Staggers

• Decision Date: 10 December 1929
• Docket Number: 3 Div. 599.
• Citation: 125 So. 61,23 Ala.App. 322
• Parties: LITTLEJOHN v. STAGGERS.
• Court: Alabama Court of Appeals

125 So. 61

23 Ala.App. 322

LITTLEJOHN v. STAGGERS.

3 Div. 599.

Court of Appeals of Alabama

December 10, 1929

Appeal from Circuit Court, Lowndes County; A. E. Gamble, Judge.

Action for damages by J. W. Staggers against Thomas P. Littlejohn. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Refusal of instruction that defendant's driving without rear light should not be considered as negligence, in action for injuries from collision with defendant's parked truck held error (Code 1923, § 6264).

The complaint is as follows:

"The plaintiff claims of the defendant the sum of two thousand dollars as damages, for that, whereas, on, to wit, the 1st day of October, 1926, at or near Lowndesboro crossing on the Selma and Montgomery road, in Lowndes county, Alabama the defendant was operating a truck or large automobile on said highway, which was a public road in said county, and negligently parked the same at night without a rear light and as a proximate result of said negligence of the defendant the plaintiff's automobile, in which plaintiff was riding on said highway, came in contact with said automobile or truck of the defendant, or certain poles protruding from the rear of said truck of the defendant and was thereby made sick and sore, and his rib was broken, and he suffered pain and was rendered unable to work, and that the plaintiff's automobile was practically demolished; all as a proximate result of said negligence of the defendant, and to the damage of the plaintiff in the sum of two thousand dollars; hence this suit." The demurrer is as follows:

"1. For that said complaint does not state a cause of action against the defendant.

"2. For that said complaint does not allege any facts showing negligence on the part of the defendant.

"3. For that the act alleged in said complaint does not constitute an act of negligence on the part of the defendant.

"4. For that said complaint fails to aver any facts showing any breach of duty by the defendant.

"5. For that said complaint fails to aver any facts showing the breach of any duty which the defendant owed the plaintiff.

"6. For that said complaint fails to aver any facts showing the breach of any duty which defendant owed plaintiff, which proximately caused the injuries complained of.

"7. For that said complaint fails to aver any facts showing that it was the duty of the defendant not to park the alleged truck or large automobile on said highway at night without a rear light.

"8. For that said complaint fails to set out any facts showing that the defendant was guilty of any negligence in parking the truck or large automobile as it is alleged in the complaint to have been done.

"9. For that said complaint showed on its face that the said truck or large automobile which the defendant is alleged to have been operating, was not being driven or operated upon any public highway of this state, but to the contrary, was parked.

"10. For that it is specifically stated in said complaint that the said truck or large automobile alleged to have been operated by the defendant on one of the highways of Alabama, was at the time of the alleged collision with the car in which plaintiff was then and there riding, parked.

"11. For that the only averment of negligence in said complaint is in substance that 'the defendant was operating a truck, or large automobile on said highway, which was a public road in said county, and negligently parked the same at night without a rear light,' and that said averment is inconsistent and repugnant within itself, in that it avers that defendant was operating a truck or large automobile on said highway, and yet also avers that it was parked.

"12. For that said complaint shows on its face that defendant was not operating nor driving any motor vehicle upon the public highways of this state at the time of the alleged collision between the plaintiff's automobile and the said truck or large automobile alleged to have been operated by the defendant.

"13. For that it is not alleged in said complaint that defendant was operating any motor vehicle at the time of the injuries complained of.

"14. For that it is shown on the face of said complaint that defendant was not operating or driving any motor vehicle upon the public highways of this state at the time of the injuries complained of, nor immediately theretofore.

"15. For that said complaint fails to state any facts constituting negligence on the part of the defendant.

"16. For that said complaint fails to aver any facts showing that it was the duty of the defendant then and there to have had a rear light of the truck or large automobile which it is averred that the defendant was operating.

"17. For that no facts are averred in said complaint showing that the defendant was operating or driving any motor vehicle upon the public highways of this state at the time of the injuries complained of, or at any time immediately prior thereto.

"18. From aught appearing in said complaint, the defendant may not have operated the alleged motor vehicle on any highway in this state since April 22, 1911.

"19. For that no facts are averred in said complaint showing that the defendant was under any duty to have had a rear light on the motor vehicle he is alleged to have been operating at the time of the injuries complained.

"20. For that the averment in the said complaint that the plaintiff's automobile was practically demolished is but the mere conclusion of the pleader, and not an averment of fact.

"21. For that the alleged damages to the plaintiff's automobile, are not sufficiently averred.

"22. For that the alleged damages to plaintiff's automobile are not specified or set out except by the statement of the conclusion of the pleader.

"23. For that said complaint fails to state the facts showing the alleged damages to plaintiff's automobile."

Pleas 3 and 4 are as follows:

"3. That at the time of the injuries complained of, the truck of defendant was standing under the rays of a light, to wit, the light of the moon, and could be plainly seen.

"4. That at the time of the injuries complained of, the truck of defendant was standing under the rays of a light...