Smith v. Clemmons
| Decision Date | 07 April 1927 |
| Docket Number | 8 Div. 946 |
| Citation | 112 So. 442,216 Ala. 52 |
| Parties | SMITH v. CLEMMONS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Lauderdale County; Norman Gunn, Special Judge.
Action by Ben Clemmons against Ed Smith. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.
Bradshaw & Barnett, of Florence, for appellant.
Simpson & Simpson, of Florence, for appellee.
Demurrer to count 1 of appellee's complaint, taking the point that it failed to sufficiently apprise defendant of the place where the wrong and injury complained of occurred; that is failed to allege that it occurred in a public road, was overruled without error. More specifically, as the argument goes, the point is that the count failed to show that at the place of the occurrence in question defendant was under duty not to run over, against, or into plaintiff's mare because the "Bridge road," for aught appearing may not have been a public road or highway. A road is a place where one may ride, drive, or walk, and we generally mean a highway when we say road. Webster's New Internat. Dict sub. "road." But, aside from that, defendant was under duty, prima facie at least, not to run over, against or into plaintiff's mare, whether on a public or private road. The general allegation that the thing was done negligently was enough. This disposes of the question of duty. Nothing said in Stewart v. Smith, 16 Ala.App. 461, 78 So. 724, suffices to change our view as to this.
Nor were counts 1 or 2 otherwise defective in the matter of acquainting defendant with the place in which he was alleged to have committed the wrong complained of. The allegation of both counts is that the wrong was done in the "Bridge road, in Lauderdale county, Ala." That was enough. Some cases involving charges of negligence against railroads in running over animals may require more definite allegations of place. But that grew out of the statute (section 1711 of the Code of 1876). That section was significantly changed in later Codes by the omission of language which had been construed to mean that "the place should be averred to be at a certain locality along the line of the road, describing its distance and direction from a named depot, or other known point." But that change in the statute law seems not to have made much impression on the court, so that greater particularity in the allegations of place is probably still required in suits against railroads than in cases of this character. This subject is considered more at length in Bugg v. Green (Ala.Sup.) 110 So. 718. We find no error at this point.
Substantially the same argument is repeated on those assignments which charge error in the refusal of the general charge requested by defendant as to each count separately. There was no evidence directed expressly to the point that the "Bridge road" was a public road, by which appellant means, as we suppose, a road maintained at the public expense, or perhaps, a road which the public were entitled to travel without let or hinderance, but the evidence showed that the accident in which plaintiff's mare was injured occurred on the "Bridge road," in Lauderdale county, a road which all the parties were using at the time as a detour from the "Jackson highway" and from this evidence it was open to the jury to infer that it was a road at the time in common use and so a public road as alleged in some of the counts of the complaint.
Appellant complains that there was no proof that defendant drove his automobile recklessly, without having regard for the use and traffic of the highway, as some of the counts charge. The evidence tended to show--in fact, it was not denied--that defendant in the nighttime, without lights on his car, drove it so rapidly as to be unable to avoid running into plaintiff's team--standing then on the extreme proper edge of the road--after discovering plaintiff's situation, if, indeed, he ever discovered it until in actual contact with it, and this notwithstanding plaintiff's efforts to warn defendant of the danger by loud calls. This made the issue of...
To continue reading
Request your trial
-
W. S. Fowler Rental Equipment Co. v. Skipper
...v. Bennett, 224 Ala. 335, 140 So. 378; Bugg v. Green, 215 Ala. 343, 110 So. 718; Jones v. Keith, 223 Ala. 36, 134 So. 630; Smith v. Clemmons, 216 Ala. 52, 112 So. 442. The accident is shown to have occurred on a named road at a point nine miles north of the Town of Warrior, which point was ......
-
Hadad v. Lockeby
... ... 385, 114 So. 273; Barrett ... v. McFerren, 165 So. 226, 231 Ala. 382; Jones v ... Colvard, 109 So. 877, 215 Ala. 216; Smith v. Clemmons, ... 112 So. 442, 216. Ala. 52 ... We ... respectfully submit to the court that no error was committed, ... on the part of ... ...
-
Louisville & N. R. Co. v. Martin
...Much depends upon the particular case, for in some instances an admission of bias would suffice to end the matter, as illustrated in Smith v. Clemmons, supra; Southern Railway Co. v. supra, and Union Mutual Ins. Co. v. Peavy, supra. And in the Harrison case, supra, it would seem the admitte......
-
Burgreen Contracting Co., Inc. v. Goodman
...Court of Appeals said there was no error committed by the trial court in overruling objection to said question. And, in Smith v. Clemmons, 216 Ala. 52, 112 So. 442, a case involving injury to a mare, the supreme court 'Plaintiff's question to the witness White, as to what the mare would bri......