Opinion
7 Div. 38.
January 13, 1921.
Appeal from Circuit Court, Talladega County; A. B. Foster, Judge.
Riddle Riddle, of Talladega, for appellant.
No brief came to the Reporter.
Knox, Acker, Dixon Sims, of Talladega, for appellee.
The pleas of contributory negligence set up sufficient facts to constitute contributory negligence. 89 Ala. 240, 8 So. 243; 90 Ala. 161, 8 So. 245; 179 Ala. 299, 60 So. 922; 135 Ala. 533, 33 So. 332; 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543.
This is an action for damages brought by appellant against appellee; the allegation of the complaint, so far as it need be stated, being that defendant negligently ran its locomotive engine over and against plaintiff's automobile truck destroying the same. The court overruled demurrers to several special pleas of contributory negligence and these rulings are assigned for error. The reporter will set out the pleas.
Plea 2 alleges that plaintiff failed to stop, look, and listen before driving upon the track. The point taken against the plea is that it fails to allege that plaintiff negligently drove upon the track. The facts alleged imported negligence per se (L. N. v. Crawford, 89 Ala. 240, 8 So. 243), and in such case it is not necessary to go further and expressly characterize plaintiff's conduct as negligent (B. R., L. P. Co. v. Gonzales, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543). As for the point taken against the plea, it was good. But, of course, it did not impair the sufficiency of plea 3, on similar authority, to allege that plaintiff did negligently drive upon the track without, etc. Plea 3 was therefore good also.
The ruling in favor of plea 4 was free from error. This plea states the facts and alleges that plaintiff was negligent in going upon the track; that is, negligently went upon the track, knowing the approach of defendant's train, and thereby proximately contributed, etc. The plea is to be considered as a whole, of course, and no argument against it, based upon segregated parts of it, can be sustained. The corut cannot know whether, in the circumstances alleged, plaintiff should be adjudged guilty of contributory negligence or should be acquitted. That was a matter for jury decision. Such being the case, it was proper for the pleader to allege the facts, and, if they reasonably admitted of different conclusions, to allege his conclusion. Such pleading is not open to the objection that it alleges conclusions only. Pace v. L. N., 166 Ala. 519, 52 So. 52; B. R., L. P. Co. v. Gonzales, supra; Shelby Iron Co. v. Bierly, 202 Ala. 422, 80 So. 806.
Plea 5 is like unto plea 4, except that, as an alternative to the allegation of plaintiff's knowledge that the train was approaching, it alleges that plaintiff, "having been able to ascertain of the approach of the same by reasonable diligence," attempted to cross the track, and that "such negligence proximately contributed to his injuries." As we have seen, it was plaintiff's duty to exercise reasonable diligence to ascertain the approach of the train before attempting to cross the track, and, if such diligence would have apprised him of the fact, then he was in the same case as if he knew it. Osborne v. Alabama Steel Wire Co., 135 Ala. 571, 33 So. 687, cited by appellant, was a case under the Employers' Liability Act, and the decision was that the plea there in question was bad because it imposed on the employee the duty to use care to discover the defect alleged, whereas he had a right, by reason of his employment, to assume that his employer had not been negligent, and that there was no defect. That decision sheds no light upon this case. Pace v. L. N. and cases supra.
The effect of plea 6 is to say that plaintiff contributed proximately in that he negligently attempted to change his gear in driving across defendant's track, thereby causing his truck to stop upon the track, and, in our judgment, stated a good defense.
There was no error in giving charge 8 requested by defendant. The argument against the charge proceeds upon the idea that when the engineer saw plaintiff approaching the crossing he (the engineer) should have acted upon the assumption that plaintiff would drive upon the track in dangerous proximity to the approaching train. But, until the contrary appeared, the engineer had a right to assume that plaintiff, before driving upon the crossing, would exercise that care which the law required of him. This principle borne in mind, the charge correctly stated the law applicable to the facts therein hypothesized.
Under the evidence — plaintiff's evidence included — plaintiff should not have been allowed to recover as for initial negligence on the part of the engineer, whatever may be said in respect to the question of subsequent negligence. The trial court explained that charge B, given for defendant, did not take the issue as to subsequent negligence away from the jury, and, with this explanation, the charge did plaintiff no harm.
Charge 1, refused to the plaintiff, did not correctly state the engineer's duty in the presence of the conditions hypothesized. His duty was, "on perceiving any obstruction on the track," to "use all the means within his power, known to skillful engineers * * * to stop the train." Code § 5473.
Plaintiff's motion for a new trial was based in part on the supposed errors of the court already noticed, our consideration of which need not be reproduced, in part upon the contention that the evidence overwhelmingly supported plaintiff's theory of the case, to which we cannot agree, and upon the proposition, brought to the attention of the trial court after verdict and judgment, that one of the jurors serving in the case was related to one of counsel for defendant by affinity within the fifth degree (computed according to the rules of the civil law). The trial court upon consideration of the several affidavits upon which the motion was submitted found that counsel for plaintiff had been informed of the fact that one of the jurors had married a second cousin of one of defendant's counsel before the verdict was rendered, and that by failing then to bring the matter to the attention of the court plaintiff had speculated upon the verdict and had waived the juror's disqualification. We concur in this ruling.
Affirmed.
ANDERSON, C. J., and McCLELLAN, J., concur in the conclusion.
GARDNER and THOMAS, JJ., concur.
SOMERVILLE, J., not sitting.
The defendant's second plea avers that —
"Said plaintiff was guilty of contributory negligence, which proximately contributed to his injury, in this, that said plaintiff before driving upon or attempting to cross said railroad track of defendant company failed to stop, look, and listen for any train which might be approaching said crossing, and if said plaintiff had so stopped, looked, and listened before attempting to cross said crossing that he would not have been injured."
While this plea does not show except by implication that the plaintiff, if he had stopped, looked, and listened, would have discovered the approaching train before he went upon the track, this point was not taken by the demurrer, and the plea was not subject to the grounds stated. However, I do not concur in what seems to be the holding of the majority that, in the absence of an averment that the conduct of the plaintiff was "negligent," the plea would be good. For aught that appears in the plea, the plaintiff, if he had stopped and looked and listened, could not have seen or heard the train. If this was true, his failure to do so could not be said to be proximate contributory negligence. Central of Georgia v. Hyatt, 151 Ala. 355, 43 So. 867; Hines, Director General, v. Champion, 204 Ala. 227, 85 So. 511; Schmidt v. Mobile, etc., Co., infra.
Before the plaintiff's failure to stop, look, and listen could be said to be proximate contributory negligence per se, so as to relieve the defendant of the duty of averring that his act was negligent, it must be made to appear that at the time of his effort to cross the train was in such proximity to the crossing as to make it dangerous for him to undertake to cross. See B. R., L. P. Co. v. Gonzales, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; Schmidt v. Mobile Light R. R. Co., 204 Ala. 694, 87 So. 181.
Plea 3 does not aver in terms that the failure of the plaintiff to stop and look and listen was negligence which proximately contributed to the injury, and the facts stated do not so show. This was essential to make it a good plea. Central of Georgia v. Hyatt, supra. Construing the plea most strongly against the pleader, as must be done on demurrer, it will be assumed that the stalling of the truck on the track was the proximate contributing cause, and not the failure to stop and look and listen. A fortiori, when the plaintiff attempted to cross the track, the train was such distance from the crossing that it relieved the situation of any element of danger, and but for the fact that the truck stalled it would have passed over the track and out of danger before the train reached the crossing. Central of Georgia v. Faust (App.) 82 So. 36; Id., 203 Ala. 248, 82 So. 345; Hines, Director General, v. Champion, supra.
The plea was subject to the objection pointed out by the fourth and seventh grounds of demurrer, if not others. Pleas 4 and 5 are subject to the same vices.
Plea 5 was subject to the further objection that it undertakes to substitute the alternative averment "or could have ascertained of its approach by reasonable diligence" for an averment that the plaintiff failed to stop and look and listen, and was subject to the third ground of demurrer.
I think the court erred in overruling the demurrers to these pleas, and that the judgment should be reversed.