Ruffin Coal & Transfer Co. v. Rich

• Decision Date: 15 April 1926
• Docket Number: 6 Div. 625
• Citation: 214 Ala. 622,108 So. 600
• Court: Alabama Supreme Court
• Parties: RUFFIN COAL & TRANSFER CO. v. RICH.

108 So. 600

214 Ala. 622

RUFFIN COAL & TRANSFER CO. v. RICH.

6 Div. 625

Supreme Court of Alabama

April 15, 1926

Rehearing Denied May 20, 1926

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by Lucile Rich, by her next friend, L.E. Rich, against the Ruffin Coal & Transfer Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Code 1923, § 7326. Affirmed.

Huey &amp Welch, of Bessemer, for appellant.

Bumgardner & Wilson, of Bessemer, for appellee.

MILLER J.

This is a suit by Lucile Rich, a minor 20 years of age, by her next friend, L.E. Rich, against the Ruffin Coal & Transfer Company, a corporation, to recover damages for personal injuries sustained by her alleged to have been caused by a truck, which was being operated by an agent or servant of the defendant, striking the automobile in which she was riding and knocking or pushing it in front of an approaching street car, by which it was struck. There was only one count in the complaint. It was amended by the plaintiff. Demurrers to it were overruled by the court. The defendant pleaded in short by consent general issue, contributory negligence, and assumption of risk, with leave to give in evidence any defense matter as if well pleaded with leave to plaintiff to give in evidence any matter, which, if well pleaded, would be admissible in reply to the defensive matter. The cause was tried by a jury. They returned a verdict in favor of the plaintiff, and from a judgment of the court thereon, this appeal is prosecuted by the defendant.

Was the complaint, containing one count as it was amended, subject to the demurrers of the defendant? No objection can be allowed for defect of form, if facts are so presented that a material issue in law or fact can be taken by the adverse party thereon. Section 9457, Code of 1923.

The complaint, as amended, avers the time as, to wit, November 2 1923, and the place of the occurrence of the injury in the following words:

"Along Second avenue, at or near Fourth street, in the city of Birmingham, Jefferson county, Ala."

The defendant, by its agent or servant, was operating a truck there, and plaintiff was riding in an automobile there at the time of the injury, as appears from this amended complaint. The time and place of the occurrence are averred with sufficient certainty and definiteness to put the defendant on notice thereof. B.R.L. & P. Co. v. Moore, 148 Ala. 115, headnote 2, 42 So. 1024; Western Ry. of Ala. v. Mitchell, 148 Ala. 35, 41 So. 427.

It avers plaintiff was riding in an automobile, "and defendant, by its agent or servant, was operating an automobile truck along Second avenue, *** in city of Birmingham." An avenue or street in a city is a public highway. Forgy v. Rutledge, 167 Ky. 182, 180 S.W. 90; B.R.L. & P. Co. v. Fox, 174 Ala. 657, 56 So. 1013. It sufficiently appears that the accident happened upon an avenue in the city of Birmingham, and neither plaintiff nor defendant was a trespasser, and each had a right to be there. It was the duty of each not to negligently injure the other as they used the avenue. B.R.L. & P. Co. v. Fox, 174 Ala. 657, 56 So. 1013; Louis Pizitz D.G. Co. v. Cusimano, 206 Ala. 689, 91 So. 779.

It thus appears the complaint by facts shows a duty owing plaintiff by defendant. It avers that the injuries were caused by defendant, its agent or servants, by the negligent manner in which the defendant's agent, servant, or employé, while acting in the line and scope of his employment, operated said automobile truck on the occasion aforesaid, in this, that defendant's said agent or servant negligently caused its automobile truck to run upon or against the automobile in which plaintiff was riding. This sufficiently avers a negligent breach of the duty owed defendant by plaintiff on this avenue. 10 Michie Dig. p. 594, § 53; Tenn. Coal, Iron & R.R. Co. v. Smith, 171 Ala. 251, 55 So. 170.

This complaint, to state a cause of action, must also aver an injury to plaintiff in consequence of the negligent breach of that duty. The negligent conduct of the defendant by its agent or servant, to be available to the plaintiff, must be the proximate cause of the injury, and it must so appear in the complaint. N.C. & St. L. Ry. Co. v. Jones, 209 Ala. 250, 96 So. 79; Smith v. Bugg, 211 Ala. 341, 100 So. 503. While a count in a complaint under demurrer should be construed most strongly against the plaintiff, still the count should be construed as a whole and the words used should receive a reasonable construction. Street v. Treadwell, 203 Ala. 68, 82 So. 28; Slight v. Frix, 165 Ala. 230, 51 So. 601.

This complaint avers that--

Defendant, by its servant, "while operating said automobile truck as aforesaid, caused it to run onto, against, or strike, the automobile in which plaintiff was riding, knocking or pushing it in front of an approaching street car, by which it was struck, and as a proximate consequence thereof plaintiff was injured as follows: [then follows a description of the personal injuries]."

This count also alleges that--

"Her injuries complained of were the proximate result of the negligent manner in which defendant's agent, *** while acting in the line and scope of his employment, operated said automobile truck on the occasion aforesaid."

And the count then alleges the negligent act of the defendant was in negligently causing "its automobile truck to run upon or against the automobile in which plaintiff was riding." The complaint alleges the defendant caused its truck to strike the automobile in which she was riding and knock it in front of an approaching street car, by which it was struck. It appears from these averments that the knocking by the truck of the automobile in front of the approaching street car and the striking of the automobile by the street car were practically one continuous act, inflicting plaintiff's injuries as a proximate result of the truck striking the automobile. It states it was knocked "in front of an approaching street car." An approaching street car is one coming near to, in point of time and place, and the automobile in front of it was the place it was near and toward which it was coming; and the automobile was there at that time and at that place by a push or knock of the truck of the defendant.

This count, was considered as a whole, avers facts showing a duty owing by defendant to plaintiff, a breach of that duty by the defendant, and an injury of plaintiff in consequence of the breach of the duty. 10 Michie Dig. 594 § 53, and authority supra. It results that this count, as amended states a cause of action against the defendant, and the court did not err in overruling the demurrer of the defendant to it. Authorities supra.

The plaintiff, her brother, and three others were in her father's car going to a football game. Her brother was driving the car. There was another car driven by Burgess with a Miss Walker with him going to the ball game. This car with plaintiff, the Burgess car, and the truck of defendant were all running in the same direction on Second avenue in the city of Birmingham. The truck driven by an agent of the defendant, was in the lead, the Burgess car was in its rear, and it was followed by the car with plaintiff, which was about 15 feet in the rear of the Burgess car. There are two tracks there for street cars in this avenue. A street car at this time was coming, meeting and in sight of the three motorcars. The Burgess car blew its horn, signaling to pass the truck, the truck bore to the curb on its right, and the Burgess car passed it on the left in safety. The car with plaintiff then signaled to pass the truck. In passing it the truck turned to the left, struck the automobile, and knocked it about 15 feet across the street in front of the approaching street car, which was only a few feet then from it. There was a collision between them, and the automobile was demolished, and plaintiff injured. There was evidence tending to show that the truck was bearing to the right and this automobile in passing struck it, then hastily and with great speed turned to the left across the street, ran into the street car, was demolished, and plaintiff was...