Schmidt v. Mobile Light & R. Co., 1 Div. 136

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 87 So. 181,204 Ala. 694
• Parties: SCHMIDT v. MOBILE LIGHT & R. CO.
• Docket Number: 1 Div. 136
• Decision Date: 16 December 1920

87 So. 181

204 Ala. 694

SCHMIDT
v.
MOBILE LIGHT & R. CO.

1 Div. 136

Supreme Court of Alabama

December 16, 1920

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Action by Christeen Schmidt against the Mobile Light & Railroad Company for damages for injury to an automobile in a collision. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

G.C. Outlaw and Brown & Kohn, all of Mobile, for appellant.

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

THOMAS, J.

The suit was for damages, the result of collision between a street car and an automobile at a crossing of two streets in a populous section of the city of Mobile.

The complaint contained counts for simple [87 So. 182] negligence and for the willful and wanton conduct of defendant's agents operating the street car. Defendant's pleas were the general issue to the entire complaint and of contributory negligence to the first count. Demurrer was sustained to plea 2, and overruled to plea 3, as last amended. The reporter of decisions will set out this plea.

The effect of our decisions is not that the defendant must use the word "negligently" in a plea of contributory negligence, but that the facts pleaded as a defense must show a negligent act that contributed to the damage or injury of which complaint is made. It must be admitted that there is some confusion in our decisions as to the effect of the use of the word "negligently" in a plea of contributory negligence. For illustration, in United States Cast Iron Pipe & F. Co. v. Granger, 162 Ala. 637, 640, 50 So. 159, the plea alleged that plaintiff "negligently" assumed or occupied a position or place of danger "under or near the said crane," without averring the facts. Held subject to demurrer as being merely the legal conclusion of the pleader. It would appear that expressions to the same effect are contained in S.S.S. & I. Co. v. Harrison, 200 Ala. 281, 282, 76 So. 47; B.R., L. & P. Co. v. Hunt, 200 Ala. 560, 561, 76 So. 918; St. Louis, etc., Co. v. Brantley, 168 Ala. 579, 584, 53 So. 305; Sou. Cotton Oil Co. v. Walker, 164 Ala. 33, 48, 51 So. 169; B.R., L. & P. Co. v. Gonzalez, 183 Ala. 273, 278, 279, 61 So. 80, Ann.Cas. 1916A, 543; and Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933. On the other hand, in Pace v. L. & N.R.R. Co., 166 Ala. 519, 524, 525, 52 So. 52, it was said that, where the general facts are stated, the word "negligently" is not without appropriate and effective uses (City of Montg. v. Wyche, 169 Ala. 181, 190, 53 So. 786); that, when the facts averred are "consistent with a negative inference, it is essential that the plea should color the equivocal facts by supplying the conclusion that plaintiff's conduct was negligent." B.R., L. & P. Co. v. Gonzalez, 183 Ala. 273, 279, 61 So. 80, 82 (Ann.Cas. 1916A, 543); S.S.S. & I. Co. v. Brooks, 87 So. 82.

The plea dealt with in B.R., L. & P. Co. v. Fox, 174 Ala. 657, 56 So. 1013 (plea 7), was somewhat different from plea 3 as amended in instant case, in that it did not aver that, if plaintiff's intestate had looked for said car, she could have seen it approaching in close and dangerous proximity, imperiling her attempt to cross ahead of it. The ruling of the trial court as to said plea was justified in the fact that it was "a duplicate of plea 8, and under which the defendant got the full benefit of plea 7." Plea 8 was in many respects like plea 7 with the additional averment that plaintiff's intestate "negligently" attempted to cross the track in front of and in dangerous proximity to said car, which was...