Mobile Light & R.R. Co. v. Forcheimer

• Decision Date: 17 April 1930
• Docket Number: 1 Div. 593.
• Citation: 221 Ala. 139,127 So. 825
• Parties: MOBILE LIGHT & R. R. CO. v. FORCHEIMER.
• Court: Alabama Supreme Court

127 So. 825

221 Ala. 139

MOBILE LIGHT & R. R. CO. v. FORCHEIMER.

1 Div. 593.

Supreme Court of Alabama

April 17, 1930

Appeal from Circuit Court, Mobile County; C. A. Grayson, Judge.

Action for damages by Seymour F. Forcheimer against the Mobile Light & Railroad Company. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals.

Affirmed.

Charge respecting street car motorman's care on seeing automobile approaching track held properly refused on ground language called for explanatory instruction.

The following were grounds of the demurrer to plea 2:

"3A. While it is alleged in one alternative that the plaintiff knew the street car was approaching, yet it is averred in another alternative that 'by the exercise of reasonable care plaintiff would have known that the street car that struck his automobile was approaching' and it is not shown wherein the plaintiff failed to exercise reasonable care."

"6. It only appears in the alternative that the plaintiff knew the street car was approaching in dangerous proximity to him, while the other alternative averment does not show that the plaintiff knew that the street car was approaching in such dangerous proximity."

These charges were refused to defendant:

"7. The Court charges the Jury that if you believe from the evidence that the plaintiff sustained his injuries as a proximate result of a mere accident, it is your duty to return a verdict in favor of the defendant."

"9. The Court charges the Jury that the motorman of a street car, operating the same in a proper manner, has the right to presume that an apparent adult person, approaching the track in an automobile, will exercise reasonable care in driving the automobile onto or in dangerous proximity to said track, and he has the right to indulge this presumption until it becomes reasonably apparent to him that said person is heedless or unaware of danger." "10. The Court charges the jury that the plaintiff in driving his automobile toward the defendant's track was under the duty to keep a continuous lookout for approaching street cars before entering upon the track, or so close thereto as that a passing street car would strike said automobile."

"11. The Court charges the jury that it was the duty of the plaintiff in driving his automobile, before driving onto or in dangerous proximity to the defendant's track, first to look in both directions for approaching street cars and a failure to do so, if you believe from the evidence there was such failure, constitutes negligence on his part."

"12. The Court charges the Jury that it was the duty of the plaintiff to keep a continuous lookout for approaching street cars before attempting to drive across, onto or so close to the defendant's track as to be struck by a car approaching thereon and a failure to keep such lookout, if you believe from the evidence there was such failure, constitutes negligence on the plaintiff's part."

"13. The Court charges the jury that if you believe from the evidence that the plaintiff on the occasion of the collision between his automobile and the defendant's street car was guilty of negligence and that such negligence on the plaintiff's part was the sole proximate cause of the injuries and damages complained of you cannot find a verdict for the plaintiff under the first count of the complaint."

Harry T. Smith & Caffey, of Mobile, for appellant.

Smith & Johnston, of Mobile, for appellee.

BROWN J.

This is an action of trespass on the case brought by the appellee against the appellant to recover damages for an injury to plaintiff's automobile, resulting from a collision with defendant's street car, while said street car was being operated on Government street in the city of Mobile.

The complaint consists of two counts, the first ascribing the injury and damage to the negligence of the defendant in general terms, and was sufficient to cover simple initial negligence as well as subsequent negligence. Mobile Light & R. Co. v. Gadik, 211 Ala. 582, 100 So. 837; Central of Georgia Railway Co. v. Foshee, 125 Ala. 199, 27 So. 1006.

The second count ascribed the injury to wanton conduct of defendant's servants or agents while acting within the line and scope of their employment in the operation of the street car.

The defendant pleaded the general issue as to both counts, and filed special pleas of contributory negligence numbered 2, 3, and 4 as to the first count.

The court sustained a demurrer to special plea 2, and this ruling the appellant insists was erroneous. The plea, judging it by its weakest alternative, alleges that plaintiff was guilty of negligence which proximately contributed to his injury in this " by the exercise of reasonable care (plaintiff) would have known that the street car which struck his automobile was approaching," and "he drove his said automobile upon, or in dangerous proximity to the track on which said street car was approaching at a time when said street car was approaching in such dangerous proximity, as to make it likely that said automobile would be struck," etc. (Italics supplied.)

Contributory negligence is a special affirmative defense, and must be pleaded with particularity, and facts must be alleged sufficient in themselves to constitute negligence as a conclusion of law, or to reasonably suggest it as an inference of fact. Birmingham Railway, Light & Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; Dwight Manufacturing Co. v. Holmes, 198 Ala. 590, 73 So. 933; Southern Rwy. Co. v. Shelton, 136 Ala. 191, 34 So. 194; Birmingham Railway, Light & Power Co. v. Barranco, 203 Ala. 639, 84 So. 839; Schmidt v. Mobile Light & Railroad Co., 204 Ala. 694, 87 So. 181.

The alternative averment, "or by the exercise of reasonable care would have known," is not an averment of fact, but a mere legal conclusion, not rested upon facts stated in the plea, rendering the plea subject to the objection pointed out by grounds 3A and 6 of the demurrer. Birmingham Railway, Light & Power Co. v. Gonzalez, supra.

Charges 7, 11, 12, and 13, if not otherwise bad, were faulty in using "believe" instead of the correct and appropriate words "reasonably satisfied," and were refused without error. Birmingham Belt R. Co. v. Nelson, 216 Ala. 149, 112 So. 422; Hammond Motor Co. v. Acker, 219 Ala. 291, 122 So. 173.

Charge 10, refused to the defendant, relates to the issues of contributory negligence on the part of plaintiff, and whether or not it was error to refuse it is judged in the light of the issues presented by the defendant's special pleas 3 and 4 and the evidence; for though it may assert a correct proposition of law, in the abstract, its refusal was not error. Mobile County v. Linch, 198 Ala. 57, 73 So. 423; Hunt v. State, 135 Ala. 1, 33 So. 329; Shelton v. State, 144 Ala. 106, 42 So. 30.

Defendant's plea No. 3, to state its substance, avers that after plaintiff looked and saw the defendant's street car approaching from the west in an eastwardly direction on the said car track on Government street, "and, thereafter could have seen said street car continuing its course on said track on Government Street if he had looked for it," and thereafter plaintiff proceeded to turn slowly into Government street in...