Southern Hardware & Supply Co. v. Standard Equipment Co.

• Decision Date: 17 December 1908
• Citation: 48 So. 357,158 Ala. 596
• Parties: SOUTHERN HARDWARE & SUPPLY CO. v. STANDARD EQUIPMENT CO.
• Court: Alabama Supreme Court

48 So. 357

158 Ala. 596

SOUTHERN HARDWARE & SUPPLY CO. v. STANDARD EQUIPMENT CO.

Supreme Court of Alabama

December 17, 1908

Rehearing Denied Jan. 14, 1909.

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by the Standard Equipment Company against the Southern Hardware & Supply Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The allegations of the complaint are, substantially, that a team of defendant was left standing in the streets of Mobile unhitched, in violation of an ordinance of the city against leaving a team unhitched or unattended, and that the team ran away, injuring a mule of plaintiff. Damages are claimed for medical attention for the mule, and for the value of the mule, and for the rent and hire of a mule to take the place of the one injured.

Defendant filed the general issue and the following special plea "(2) It is true, as alleged in the second count of the complaint, that the city of Mobile had in force, at the time of the alleged injuries to plaintiff's mule, the ordinance mentioned in said second count; and defendant avers that plaintiff itself was guilty of negligence, in this: That it allowed its mule, the injury and death of which is the subject of this suit, to be and stand on the public streets of said city of Mobile unattended and without being hitched in violation of said ordinance, and said negligence of plaintiff in having no attendant in charge of the mule at the time proximately contributed to the injuries received by the said mule."

The assignments of error as to evidence are as follows: "(1) The court erred in sustaining plaintiff's objection to defendant's question to the witness Christian as to why he did not say to defendant that he wanted it to take charge of the mule before he sent it to Edwards Hospital. (2) The court erred in sustaining plaintiff's objection to defendant's question to the witness New as to whether a driver in charge of plaintiff's mule would or would not have been able to get the mule out of the way of the runaway team. (3) The court erred in sustaining plaintiff's objection to the defendant's question to the witness Herzog as to whether a reasonably prudent driver or attendant in charge of plaintiff's mule could have gotten him out of the way of the approaching runaway team."

The court, in its oral charge, instructed the jury that it was negligence per se to leave the wagon there unattended. Exception was reserved to this, as was an exception to the following oral charge: "Now, it seems from the evidence that plaintiff was also guilty of leaving his animal, the mule that was injured, unattended in the street. I think I can charge you as a matter of law that plaintiff is guilty of negligence in that respect. But you must look to see whether that was the proximate cause of the injury, or whether the original negligence of defendant was the proximate cause; and if you believe that this wagon of plaintiff was standing there unattended, and that there was a driver near, and that the driver saw this runaway team coming towards him, and if this driver negligently failed to draw aside and let the runaway team pass, then, of course, that would be contributory negligence, which would defeat this recovery."

The following charge was refused to defendant: "(4) The court charges the jury that if you believe, from all the evidence, that the mule and team of plaintiff was standing on the street unhitched and unattended, and if you further believe, from all the evidence, that if it had been attended by an ordinarily prudent person, the injury would have been averted, then the injury to said mule would...