Opinion
7 Div. 83.
March 10, 1932.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
C. J. Griffith, of Birmingham, for appellant.
A count that evers negligence by way of conclusion is bad unless it sets up facts showing a duty. N.C. St. L. R. Co. v. Beard, 15 Ala. App. 468, 73 So. 828. The sufficiency of a complaint, in an action for personal injuries, which undertakes to define the particular negligence causing the injury, must be tested by the special allegations in that respect, although the general allegation of negligence would, in the absence of such special allegations, be sufficient to make a prima facie case of negligence. Birmingham O. M. Co. v. Grover, 159 Ala. 276, 48 So. 682.
E. O. McCord Son, of Gadsden, for appellee.
Negligence may be stated in general terms; it is not necessary to specify the particular acts that defendant did or omitted to do. L. N. R. Co. v. Church, 155 Ala. 329, 46 So. 457, 130 Am. St. Rep. 29; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; B. R. L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262; B. R. L. P. Co. v. Jordan, 170 Ala. 535, 54 So. 280; B. R. L. P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543. Count 1 sufficiently avers the time and place and duty of the defendant. Stallworth v. Ward, 210 Ala. 595, 98 So. 719, 720.
Count 1 of the complaint alleges:
"* * * On or about the 26th day of August 1930 plaintiff was in the act of walking across Broad Street in Gadsden, Alabama, at or in proximity to the junction of said Broad Street and Third Street, both of which are public thoroughfares in said city, and at said time and place the defendant was operating an automobile, and
"Plaintiff avers that the defendant then and there negligently ran said automobile against, upon or over the plaintiff (here follows recital of injuries); all of which said injuries and damages plaintiff avers were proximately caused by the negligence of the said Charles Eady in that at said time and place he so negligently handled, managed, operated or controlled the automobile which he was driving as that it ran against, upon or over plaintiff as aforesaid," etc.
This count sufficiently avers time and place, discloses the duty owed by an automobile driver to a pedestrian while in lawful use of a public street, and a breach of such duty in the operation of the automobile.
It is not demurrable for generality in averment of negligence. It does not set forth the quo modo of negligent operation; hence is not demurrable for insufficient averment in such cases. Louisville Nashville R. Co. v. Church, 155 Ala. 329, 46 So. 457, 130 Am. St. Rep. 29; Dwight Manufacturing Co. v. Holmes, 198 Ala. 590, 73 So. 933; Birmingham Ry. L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262.
The verdict, as disclosed on its face, was returned on count 1. Rulings on other counts adverse to defendant were immaterial. No other questions are raised.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.