Smith v. Louisville & N.R. Co.

• Decision Date: 06 June 1929
• Docket Number: 6 Div. 455.
• Citation: 219 Ala. 676,123 So. 57
• Parties: SMITH v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

123 So. 57

219 Ala. 676

SMITH v. LOUISVILLE & N. R. CO.

6 Div. 455.

Supreme Court of Alabama

June 6, 1929

Rehearing Denied June 27, 1929.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for wrongful death by Annie Smith against the Louisville &amp Nashville Railroad Company. From a judgment for defendant plaintiff appeals. Reversed and remanded.

W. A Denson, of Birmingham, for appellant.

McClellan & Stone and J. W. Patton, all of Birmingham, for appellee.

FOSTER J.

At the outset, we are invited to a consideration of the sufficiency of the contributory negligence pleas as answers to the simple negligence count of the complaint. For convenience we will restate some of the principles of the law of pleading which seem to have application. Such plea is not sufficient without stating the facts constituting the contributory negligence relied on. Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933, citing a large number of our cases to the same effect. Where the facts alleged import contributory negligence per se, it is not necessary expressly to characterize plaintiff's conduct as such. Hurt v. So. Rwy. Co., 205 Ala. 179, 87 So. 533. If the allegations of fact are consistent with an absence of negligence, the plea should supply the conclusion by alleging that plaintiff's conduct was negligent. B. R. L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; Pace v. L. & N. R. R. Co., 166 Ala. 519, 52 So. 52; B. R. L. & P. Co. v. Borranco, 203 Ala. 639, 84 So. 839; Schmidt v. M. L. & R. Co., 204 Ala. 694, 87 So. 181. When plaintiff's conduct is not per se negligent, but may be so as affected by attendant facts, such facts must be concisely alleged. B. R. L. & P. Co. v. Gonzalez, supra.

The facts charged to plaintiff's intestate in plea 2 should not be subjected to any more critical examination than is customary in analyzing the effect of pleas generally. In Hurt v. So. Rwy. Co., supra, this court expressed the view that it imports negligence per se to go upon or attempt to cross a steam railroad track without stopping, looking, and listening. The plea in that case alleged that plaintiff before attempting to cross failed to stop, look, and listen. It was not alleged that he negligently did so, yet such failure might have resulted from an act, for which he was not responsible. To so hold would be a refinement of criticism not proper for practical purposes. The allegation ordinarily imports a voluntary act in choosing that course. So, in plea 2, now under consideration, where the statement is made that plaintiff's intestate caught the side of a rapidly moving freight train, we think that it imports a voluntary act, and freedom of choice in doing so, and not subject to the objection that it was consistent with some circumstance for which he was not responsible, whereby it became the prudent thing to do. Such allegation should therefore be construed as importing negligence per se, and without an express statement to that effect. So that, if this plea 2 is treated as a plea of contributory negligence, as the demurrers to it imply, we think it is not subject to the demurrers so addressed to it.

While plea 3 charges that the act of plaintiff's intestate was negligent, it does not show in what respect he was negligent in being on defendant's railroad, when from the complaint, presumably admitted in this plea, he had the right to cross this track which was in the city of Birmingham, and at a public crossing, unless he violated some rule of ordinary care or of law in doing so. Did he fail to stop, look, and listen (Hurt v. So. Rwy. Co., supra), or, being conscious of the dangerous approach of the train, did he negligently go upon the track to a dangerous position ( Williford v. A. C. L. R. R. Co., 216 Ala. 309, 113 So. 44; Hurt v. So. Rwy. Co., supra; So. Rwy. Co. v. Shelton, 136 Ala. 191, 208, 34 So. 194), or did he violate a city ordinance, or state law (Williams v. A. F. & I. Co., 212 Ala. 159, 102 So. 136; Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471), or some other legal duty? In the case of Williford v. A. C. L. R. R. Co., supra, the plea there considered supplied the defect here pointed out as to plea 3, in that

it alleged that plaintiff's intestate knew of the approach and dangerous proximity of defendant's train. We think the rules of pleading contributory negligence require some such specific detail of averment.

The court overruled demurrers to these pleas, and we think this was error as to plea 3, but not as to plea 2.

It is next insisted that the court misplaced the burden of proof in charging the jury. It is claimed that this is the effect of that part of the charge which instructs the jury that the burden is on plaintiff to reasonably satisfy the jury of "every material allegation of all or one of the counts of the complaint," and of "every allegation of one or all the counts of the complaint." Count 1 attributes the disaster to negligence in that defendant's "servants or agents negligently caused said train to run against" said intestate and kill him. Count 2 was subsequent negligence after discovery of the peril, and count 3 attributes the disaster to the fact that defendant's "servants or agents wantonly, willfully, or intentionally ran said train against said minor with knowledge," etc. The point is made that this charge violates the rule placing the burden stated in section 9955, Code.

It has, we think, been settled that this statute does not place the burden on defendant as to counts charging willful or wanton conduct or subsequent negligence. C. of Ga. R. R. Co. v. Graham, 218 Ala. 624, 119 So. 654; Lambert v. So. Rwy. Co., 214 Ala. 438, 108 So. 255; Snider v. A. G. S. R. R. Co., 210 Ala. 119, 97 So. 209; L. & N. R. R. Co. v. Jones, 191 Ala. 484, 67 So. 691. But it is well understood that it does not have this effect as to a simple negligence count. Carlisle v. A. G. S. R. R. Co., 166 Ala. 591, 52 So. 341; Cent. of Ga. R. R. Co., v. Moore, 200 Ala. 213, 75 So. 971; Ex parte So. Rwy. Co., 181 Ala. 486, 61 So. 881. This court, in considering the effect of such a general statement as that of which complaint is here made, but as contained in a special charge given at the request of defendant has held that there was no reversible error. Cardwell v. L. & N.E. R. Co., 185 Ala. 628, 64 So. 564. We are not now willing to depart from that ruling.

Before the court entered upon the trial appellant demanded a struck jury. Thereupon 24 jurors in attendance were brought into court, and a list made of them. There had been impaneled for the civil division to serve that week seven jury panels, but each one did not consist of 12 men; there were 79 in all. The 24 sent in were from panels 5, 6, and 7. There were 6 from panel 5, who were the last numbered on it, except that number 58 was omitted; also all of panel 6, except number 71; also all of panel 7, consisting of 7 men. Plaintiff's counsel moved the court for jurors on panels 1 and 2. The court overruled the motion, and appellant excepted. It is sufficient to say, as to this motion, that no showing was made that they were not otherwise engaged. Plaintiff's counsel then offered to show that of those sent into court 50 per cent. were interested directly or indirectly in the defendant corporation, and for that reason he challenged the array. The court declined to allow plaintiff to introduce evidence to prove such facts in support of the motion. And the court overruled the motion, and plaintiff excepted. Plaintiff also offered to make proof that there were 16 other jurors in attendance upon the...