Maddox v. Jones

• Decision Date: 21 April 1921
• Docket Number: 7 Div. 191
• Parties: MADDOX v. JONES.
• Court: Alabama Supreme Court

89 So. 38

205 Ala. 598

MADDOX v. JONES.

7 Div. 191

Supreme Court of Alabama

April 21, 1921

Appeal from Circuit Court, Shelby County; E.J. Garrison, Judge.

Action by Theopolis Jones against J.W. Maddox, for damages for the death of a colt. Judgment for plaintiff, and defendant appeals. Transferred from court of appeals under section 6 Acts 1911, p. 449. Affirmed.

Grady Reynolds, of Clayton, for appellant.

Riddle & Ellis, of Columbiana, for appellee.

SOMERVILLE J.

The complaint is not subject to any of the grounds of demurrer. It shows that defendant was driving his car along a public highway, and that defendant's colt was also on that highway, where each, as a matter of law, had presumptively an equal right to be. Reaves v. Maybank, 193 Ala. 614 69 So. 137. Under those conditions it was defendant's duty to avoid injuring the colt, if he could avoid it by reasonable care in the operation of his car. This is a sufficient predicate for the charge that he negligently ran against the colt. Dozier v. Woods, 190 Ala. 279, 67 So. 283.

When the facts out of which the duty arises are alleged, it is not necessary to charge the legal conclusion that the duty existed. Postal Tel. Co. v. Hulsey, 132 Ala. 444, 31 So. 527; B.R., L. & P. Co. v. Cockrum, 179 Ala. 372 60 So. 304.

Unquestionably the colt was struck and injured by a motorcar, as alleged, and whether it was struck and injured by defendant's car or by some other car was under the evidence a disputed question of fact for the jury.

Finding that issue against defendant, we think it was also a question of fact for the jury to determine whether it was negligence for defendant to attempt to pass along the road in close proximity to this colt following its dam at so high a speed as 20 miles an hour, without the precaution of slowing down or blowing the horn in warning.

It was inferable from the testimony that the colt was in the middle of the road when struck, and, if so, it was the duty of the driver of the car to have regard for the timidity of so young an animal, and the possible consequences of its being frightened by the rapidly moving car.

It is certain either that the car ran upon the colt or that the colt shied against the car; and in either case the result may by reasonable inference be attributed to the negligent handling of the car under conditions open to the observation of the driver and fairly suggestive of the actual result.

We...