Mobile Light & R. Co. v. Drooks
| Citation | 66 So. 824,11 Ala.App. 595 |
| Decision Date | 10 November 1914 |
| Docket Number | 103 |
| Parties | MOBILE LIGHT & R. CO. v. DROOKS. |
| Court | Alabama Court of Appeals |
Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.
Action by Andrew Drooks against the Mobile Light & Railroad Company. Judgment for the plaintiff, and defendant appeals. Affirmed.
Gregory L. & H.T. Smith, of Mobile, for appellant.
Inge & McCorvey, of Mobile, for appellee.
The counts of the complaint upon which the trial was had counted on simple negligence in general terms, and the defendant appellant here, filed in answer thereto two special pleas of contributory negligence, setting up, in substance, in one of them, that the plaintiff, at the time of the injury complained of, went so close to defendant's car track as to be struck by the passing car, without first having stopped, looked and listened to ascertain whether or not a car was approaching within dangerous proximity to him, when if he had so stopped, looked, and listened, he would have known of the approach of the car in time to avoid the injury; and, in the other of them, that plaintiff, while knowing that defendant's car was approaching him and in dangerous proximity to him, went at such time on or so near to the track on which the car was so approaching as to be struck by it. To these pleas, separately and severally, the plaintiff filed, in addition to the general replication, a special replication of subsequent negligence, alleging that (quoting from the replication) "the defendant's servants or agents in charge or control of said car knew of plaintiff's peril, and, after becoming aware thereof, they negligently failed to exercise due care and diligence to avert the injury to plaintiff, and that, as a proximate consequence thereof, plaintiff was injured." The defendant demurred to this replication on the grounds: First, that it does not appear from its averments "what peril it was that defendant's servants or agents are charged with having become aware of prior to the said alleged act of negligence on their part"; and, second, that it does not appear from the averments of said replication that "the said act of negligence on the part of defendant's servants, which is alleged to have been subsequent to the discovery of plaintiff's peril, was also subsequent to the negligence of plaintiff, as alleged in defendant's said pleas."
A replication, like other pleadings, while it is to be construed most strongly against the pleader, is yet to be construed fairly and in the light of, and with reference generally to, the other pleading, and particularly to the allegations of the plea it purports to answer. The replication here, when so construed, is, we think, clearly not open to either of the criticisms aimed at it in the demurrer; consequently, we are of opinion that the action of the court in overruling the demurrer was free from error.
The rule established by section 5476 of the Code, placing on a railroad company the burden of acquitting itself of negligence when, in a suit therefor, it is shown that the person complaining was injured by the locomotive or cars of such company, has no application to a street railroad company. Appel v. Selma Ry. Co., 177 Ala. 457, 59 So. 167; O'Rear v. Manchester Lumber Co., 6 Ala.App. 461, 60 So. 462. Therefore the burden was on the plaintiff in the present suit to show negligence.
At the conclusion of the evidence introduced by the plaintiff, and before the defendant introduced any evidence, the latter moved the court to exclude all the evidence introduced by the plaintiff, on the alleged ground that it failed to make out a prima facie case. This evidence for the plaintiff tended to show, among other things, in this respect that the accident occurred in the business district of the city of Mobile, on the west side of Royal street, a street which runs north and south, at a point thereon between Dauphin and Conti streets, in front of an establishment or building indifferently called Stile's or Closkey's, which was then being remodeled or repaired, as a result whereof the sidewalk in front of this building was obstructed and roped off to prevent the passage along there of pedestrians, and necessitating their walking out into said Royal street in order to get around. Out in Royal street, and just in front of the building mentioned, and extending from the curb of the sidewalk in front of said building into said Royal street east for a distance of some 5 or 6 feet, there was a box some 16 or 18 feet wide temporarily placed there and used for storing sand and gravel that had been assembled for the repairs mentioned, and which pedestrians, after leaving the sidewalk, had also to go around in passing said building. Between the end of this box, projecting, as said, east into Royal street, and the car track of defendant, which imbedded in and level with the street ran north and south along said street, the distance was some 4 or 5 feet, and afforded the only clear passageway around the front of said building. At the time of the accident the plaintiff had come south down the sidewalk as far as the ropes mentioned, and had then stepped off of the curb into the street en route around the obstructions, and, after stopping and turning a moment or so to speak to some friends whom he met just at the edge of the box, he turned again and proceeded on down the street between said box and defendant's car track and near said track for a distance of some 8 or 10 feet, without stopping to look or listen for an approaching car, and entirely unconscious that the one was near and approaching from the rear, which struck him as it passed, and inflicted the injuries complained of. The evidence for the plaintiff further tended to show that no gong was sounded or other signal given of the approach of the car, and that Royal street--the street along which the car was traveling--was entirely straight, and that there was nothing to obstruct the view of the motorman or to prevent him from seeing the plaintiff as he was walking down the street in the manner and position...
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