Walker v. Bowling
| Citation | 72 So.2d 841,261 Ala. 46 |
| Decision Date | 13 May 1954 |
| Docket Number | 8 Div. 682 |
| Parties | WALKER v. BOWLING. |
| Court | Supreme Court of Alabama |
Potts & Young, Florence, for appellant.
Bradshaw, Barnett & Haltom, E. B. Haltom, Jr., Florence, for appellee.
The plaintiff (appellee) sued defendant (appellant) for personal injuries received in a collision of the car in which she was riding as a guest of one Newberry, with a car driven by defendant. The appeal is by the defendant from a judgment of the circuit court at law granting a motion to set aside a verdict and judgment in favor of defendant. The recitals of the judgment granting the motion show that one reason for doing so was his error in overruling plaintiff's demurrer to plea 3 of contributory negligence. The judgment in that respect recited that:
That recital shows one theory on which the trial court acted in granting the motion. It also shows that the case of McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508, 511, had considerable influence on the result reached. As shown by the exerpt from the judgment, the plea averred 'that as a proximate result of plaintiff's negligence in thus riding in the automobile, she received the injuries complained of.' In the McGeever case, supra, plaintiff was riding with defendant in a motor car. The plea in question (No. 5) was by its terms an assumption of risk. The opinion showed that such designation was not technically accurate, but that its sufficiency was to be tested by its allegations of fact and not by what it is self styled. So that the question treated was whether the plea was good as one of contributory negligence. 'The substance of these facts was that plaintiff joined defendant in a ride for mutual pleasure, [there being then no guest statute as now] and willingly and voluntarily rode in the car for about a quarter of a mile at a speed of about 40 miles an hour, knowing that defendant was under the influence of intoxicants; that the car was loaded above its capacity and its driving therefore dangerous, and that the streets being driven over were constantly used by automobiles and other vehicles.' Commenting on that plea the opinion notes that there is no allegation nor 'necessary implication that the negligent collision charged in the complaint was the proximate result of the conditions, known to plaintiff, under which defendant's car was being operated just preceding the collision'. The defect was that the plea did not allege or show that the collision resulted from the alleged speeding of the car regardless of the driver's intoxication. The plea did not allege that plaintiff's conduct was a proximate contributing cause of her injury, or had any connection with it. Non constat, the collision might not have resulted from the conditions specified.
In the instant case the plea alleges that she was riding in the automobile with a driver who she knew was incompetent and was advised by him that he intended to drive said automobile as fast as it would go; that the highway was wet and slippery which was known to plaintiff; and Newberry was driving the car at an excessive and reckless rate of speed and at such rate as a reasonably prudent man would not have driven under the circumstances, and that with such knowledge of that by plaintiff and with knowledge of the danger she negligently sat in said automobile without making any remonstrance to said Newberry or attempting to induce him to drive as a reasonable and prudent person would have done, and plaintiff's said action was attended with great danger which was known to plaintiff and was obvious to her. 'And defendant avers that as a proximate result of the negligence of the plaintiff in thus riding in said automobile under said circumstances, she received the injuries complained of.'
Of course it is plaintiff's negligence which defendant is seeking to set up as a defense. To support such a claim the plea must aver facts which raise a duty to defendant imposed by law and a negligent breach of that duty which must be shown by the allegations of the plea to have been a proximate contributing cause of her injuries.
We are now dealing with that feature of the plea which must show that her breach was a proximate contributing cause. Since the adoption of Rule 37 of Circuit Court Practice on June 18, 1942, Code 1940, Tit. 7 Appendix, the requirements for pleading contributory negligence are not as strict as formerly, as when the McGeever case, supra, was decided. There is now no greater strictness in pleading contributory negligence than there has always been in a complaint charging primary negligence. Birmingham Electric Co. v. Carver, 255 Ala. 471, 52 So.2d 200. But the defect pointed out in the McGeever case is not affected by that rule. The defect in plea No. 5, then being considered, was a failure to allege or show that plaintiff's negligence proximately contributed to her injury. She was suing the driver of the motor car in which she was riding, prior to the guest statute, Title 36, section 95, Code, and of course must allege that he proximately caused her injuries by his negligence. The plea did not allege that the negligent collision charged in the complaint was the proximate result of conditions known to plaintiff under which defendant's car was being operated just preceding the collision.
But in plea No. 3 in the instant case it is alleged, as we have shown, that plaintiff's injuries were the proximate result of the negligence of plaintiff 'in thus riding in said automobile under said circumstances'. It could not have so resulted if there had intervened another efficient, independent, sole proximate cause of her injuries. Moore v. Cruit, 238 Ala. 414, 191 So. 252. Such a cause would have insulated her injuries from her negligence, which would not then have been a proximate cause of them. So that when the plea alleges that her injuries proximately resulted from her negligence there described, it eliminates any other intervening efficient cause from sole responsibility, and sufficiently shows that the conduct of Newberry, for which she is alleged to have become responsible by her negligence, was a proximate producing cause; otherwise plaintiff's negligence, so alleged, could not have proximately been so. It had nothing else on which her negligence could stand and be a proximate cause. The defect in the McGeever case, supra, was cured by the allegations in plea 3 which we have quoted above.
As a plea of contributory negligence it must allege facts which show a duty imposed by law owing to defendant. Plea 3 alleges that the defendant was not driving the car in which pla...
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