Mobile Light & R. Co. v. Baker

• Decision Date: 17 December 1908
• Citation: 158 Ala. 491,48 So. 119
• Parties: MOBILE LIGHT & R. CO. v. BAKER.
• Court: Alabama Supreme Court

48 So. 119

158 Ala. 491

MOBILE LIGHT & R. CO. v. BAKER.

Supreme Court of Alabama

December 17, 1908

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by Alfred C. Baker against the Mobile Light & Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The first count is in simple negligence for damage to the property and person of plaintiff while crossing the track of defendant at the intersection of a highway with said track or in a highway over which said track was operated, and the negligence is alleged to be in the way and manner in which the car was managed. The second count sets out the conditions surrounding the collision, and avers that the injuries and damages were caused as a proximate consequence of the failure of defendant's servant in charge of the car to exercise due care and diligence to avoid injuring plaintiff or destroying his property after discovering the perilous situation of plaintiff. The third count is same as the second, but the negligence alleged is the failure to keep a proper lookout while operating a car on the highway. The pleas of contributory negligence were that plaintiff undertook to drive across the track in front of an approaching car, without stopping, looking, and listening for its approach, and that the plaintiff attempted to drive across the track in front of an approaching car without exercising reasonable prudence to ascertain whether or not the car was approaching. The grounds of demurrer are that the pleas are not an answer to the second and third counts because they are counts in wanton or willful misconduct. The following questions were propounded to the witness Taylor and objected to: "In your presence or hearing did not motorman of that car make any statement, right after the accident happened, as to how it happened?" This question was also propounded to plaintiff, and he was permitted to answer as follows: "Yes, sir; he said he was standing up against the door, with his head hanging down, on account of its raining awfully, and he never saw us."

Gregory L. & H. T. Smith, for appellant.

Inge & Armbrecht, for appellee.

ANDERSON J.

The trial court erred in sustaining the demurrers to the defendant's pleas 2 and 3 to the third count of the complaint as amended. This count was for simple negligence, and contributory negligence was a good defense to same, and whether the pleas were sufficient, as such, we need not determine, as the second ground of demurrer is the only one which questions the pleas as applicable to the third count, and they were not subject to the defect therein suggested. The pleas as refiled after amendment of the complaint went to each count thereof. It may be that the...