Renfroe v. Collins & Co.

• Decision Date: 15 November 1917
• Docket Number: 6 Div. 510
• Citation: 201 Ala. 489,78 So. 395
• Parties: RENFROE v. COLLINS & CO.
• Court: Alabama Supreme Court

78 So. 395

201 Ala. 489

RENFROE v. COLLINS & CO.

6 Div. 510

Supreme Court of Alabama

November 15, 1917

On Rehearing, March 23, 1918

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by E.S. Renfroe against Collins & Co., a partnership, for damages for the death of James Renfroe. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Harsh Harsh & Harsh and Francis M. Lowe, all of Birmingham, for appellant.

Stokely Scrivner & Dominick, of Birmingham, for appellee.

McCLELLAN J.

James Renfroe, a minor a few months under 12 years of age and a son of the plaintiff (appellant) was killed as the immediate result of his head's striking the paving of a public thoroughfare in the city of Birmingham. The boy was on roller skates at the time. According to the plaintiff's theory the boy was holding on, either to the side of the defendant's (appellee's) moving auto truck, or to the rear thereof, in order to be drawn along the paved way, on his skates, by the power of the truck. The complaint contained two counts; one ascribing the fatal injury to simple negligence, and the other attributing the fatal injury to wanton (not willful) misconduct or omission for which the defendant is responsible. Besides the general issue, the defendant interposed special pleas 1, 2, 3, 4, and 6. The report of the appeal will reproduce these pleas. Plea 5 was stricken at plaintiff's (appellant's) instance. Pleas 2, 3, 4, and 6 were sustained as against the count charging simple negligence, but were eliminated as asserting efficient defenses to the count charging the aggravated wrong set forth in the second count.

The unfortunate boy was a trespasser if he took hold of the truck in his effort to gain a ride; and, if his injury occurred while he was so related to the moving truck, the plaintiff could not recover unless the defendant's servant or servants in charge of the truck then knew that he was in a position of peril, and either through simple negligence proximately caused his injury, or willfully or wantonly proximately caused his injury. Jefferson v. Birmingham Ry. Co., 116 Ala. 294, 301, 22 So. 546, 38 L.R.A. 458, 67 Am.St.Rep. 116.

The averments of pleas 2, 3, and 6, to which appellant's demurrers were overruled and of which rulings assignments of error are predicated, did not assert a character of contributory negligence that was effective to defeat plaintiff's right to recover as for simple negligence after the discovery of the boy's peril. These pleas did assert a character of contributory negligence that might have been effective to bar a recovery for initial negligence on the part of the defendant's servant; but they did not even purport to assert a negligent act or omission by the boy or his parent that was coincident or concurrent with negligence on the part of defendant's servant or servants after the discovery of the boy's peril which was efficient to characterize the boy's, or the father's, act or omission in the premises as contributorily negligent to the bar of a recovery for simple negligence after the discovery of the boy's peril. L. & N.R.R. Co. v. Young, 153 Ala. 232, 235, 45 So. 238, 16 L.R.A. (N.S.) 301; Anniston Elec. Co. v. Rosen, 159 Ala. 195, 48 So. 798, 133 Am.St.Rep. 32. We understand the court to have instructed the jury that the plaintiff should not recover unless the defendant's agent was guilty of simple negligence, after the discovery of the boy's peril, or willfully or wantonly caused the boy's injury. In the circumstances made by the evidence and the stated restrictive instruction of the jury by the court, no prejudice could have reasonably resulted to the plaintiff by the action of the court in overruling the demurrer to the pleas; this whether the pleas were faulty or not, a question it is not thought necessary to consider. Under the evidence and the averments of the two counts, the issues, within the range of the stated possible rights of the plaintiff to recover, were due to be submitted to the jury for decision.

The city of Birmingham had the power and authority to pass the ordinance quoted in the fourth plea. Code, § 1251. The argument of appellant's counsel against its validity has been accorded careful consideration. Our opinion is that the ordinance is clearly valid, even though its terms are regarded as including an inhibition against the act of an owner or of his child "while on roller skates or bicycle" catching or grasping "any street car or any other vehicle which is moving upon the streets of Birmingham." The police power of the municipality in respect of such matters, importing the manifestly humane and conservative purpose of that authority over its streets and people using them, amply justified the enactment of the ordinance in the broad terms it employs. The ordinance considered by the court in Miller v. Eversole, 184 Ill.App. 362, was materially different from the ordinance here involved. There the prohibition included stationary vehicles, and did not at all depend for its rationale upon the safety of either persons or property in public thoroughfares, but, to the contrary, conditioned its restraint or inhibition upon the consent of the owner; whereas the ordinance here under consideration intends without restriction the preservation of the safety of persons in public thoroughfares. The cases of State v. Wittles, 118 Minn. 364, 136 N.W. 883, 41 L.R.A. (N.S.) 462, Ann.Cas. 1913E, 433, Mobile v. Orr, 181 Ala. 314, 61 So. 920, 45 L.R.A. (N.S.) 575, and Chicago v. Gunning, 214 Ill. 628, 73 N.E. 1035, 70 L.R.A. 230, 2 Ann.Cas. 892, are without bearing on the question of the validity of this ordinance.

The sixth assignment complains of the action of the court in admitting the ordinance in evidence. The bill of exceptions recites:

"Counsel for defendant here introduced in evidence section 22 of an ordinance of the city of Birmingham, being part of Ordinance 174C, entitled 'Laws to further regulate the use of the public highway in the city of Birmingham.' Plaintiff objected to the introduction of said ordinance on the ground that it was irrelevant, immaterial, illegal, and unreasonable and not binding in this case. It was here admitted by counsel for plaintiff to save the trouble and expense of having a witness brought up from the city hall to prove said ordinance, that the ordinance admitted was identical with the regular duly passed ordinance book, and in that way waived further proof. The court overruled the objection. Plaintiff then and there duly and legally excepted to the ruling of the court."

It is insisted that this was error because it was not shown that the ordinance was in force and effect at the time in question. The admission and waiver expressed in the quoted recital from the bill of exceptions precluded any subsequent complaint by appellant in the premises.

In the...