Summary
In Littlejohn v. Staggers, 23 Ala. App. 322 (125 So. 61), the complaint charged that while the defendant's truck was standing at night without lights it was struck by the plaintiff's car.
Summary of this case from Landis v. WickOpinion
3 Div. 599.
December 10, 1929.
Appeal from Circuit Court, Lowndes County; A. E. Gamble, Judge.
Action for damages by J. W. Staggers against Thomas P. Littlejohn. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
The complaint is as follows:
"The plaintiff claims of the defendant the sum of two thousand dollars as damages, for that, whereas, on, to wit, the 1st day of October, 1926, at or near Lowndesboro crossing on the Selma and Montgomery road, in Lowndes county, Alabama, the defendant was operating a truck or large automobile on said highway, which was a public road in said county, and negligently parked the same at night without a rear light, and as a proximate result of said negligence of the defendant the plaintiff's automobile, in which plaintiff was riding on said highway, came in contact with said automobile or truck of the defendant, or certain poles protruding from the rear of said truck of the defendant, and was thereby made sick and sore, and his rib was broken, and he suffered pain and was rendered unable to work, and that the plaintiff's automobile was practically demolished; all as a proximate result of said negligence of the defendant, and to the damage of the plaintiff in the sum of two thousand dollars; hence this suit."
The demurrer is as follows:
"1. For that said complaint does not state a cause of action against the defendant.
"2. For that said complaint does not allege any facts showing negligence on the part of the defendant.
"3. For that the act alleged in said complaint does not constitute an act of negligence on the part of the defendant.
"4. For that said complaint fails to aver any facts showing any breach of duty by the defendant.
"5. For that said complaint fails to aver any facts showing the breach of any duty which the defendant owed the plaintiff.
"6. For that said complaint fails to aver any facts showing the breach of any duty which defendant owed plaintiff, which proximately caused the injuries complained of.
"7. For that said complaint fails to aver any facts showing that it was the duty of the defendant not to park the alleged truck or large automobile on said highway at night without a rear light.
"8. For that said complaint fails to set out any facts showing that the defendant was guilty of any negligence in parking the truck or large automobile as it is alleged in the complaint to have been done.
"9. For that said complaint showed on its face that the said truck or large automobile which the defendant is alleged to have been operating, was not being driven or operated upon any public highway of this state, but to the contrary, was parked.
"10. For that it is specifically stated in said complaint that the said truck or large automobile alleged to have been operated by the defendant on one of the highways of Alabama, was at the time of the alleged collision with the car in which plaintiff was then and there riding, parked.
"11. For that the only averment of negligence in said complaint is in substance that 'the defendant was operating a truck, or large automobile on said highway, which was a public road in said county, and negligently parked the same at night without a rear light,' and that said averment is inconsistent and repugnant within itself, in that it avers that defendant was operating a truck or large automobile on said highway, and yet also avers that it was parked.
"12. For that said complaint shows on its face that defendant was not operating nor driving any motor vehicle upon the public highways of this state at the time of the alleged collision between the plaintiff's automobile and the said truck or large automobile alleged to have been operated by the defendant.
"13. For that it is not alleged in said complaint that defendant was operating any motor vehicle at the time of the injuries complained of.
"14. For that it is shown on the face of said complaint that defendant was not operating or driving any motor vehicle upon the public highways of this state at the time of the injuries complained of, nor immediately theretofore.
"15. For that said complaint fails to state any facts constituting negligence on the part of the defendant.
"16. For that said complaint fails to aver any facts showing that it was the duty of the defendant then and there to have had a rear light on the truck or large automobile which it is averred that the defendant was operating.
"17. For that no facts are averred in said complaint showing that the defendant was operating or driving any motor vehicle upon the public highways of this state at the time of the injuries complained of, or at any time immediately prior thereto.
"18. From aught appearing in said complaint, the defendant may not have operated the alleged motor vehicle on any highway in this state since April 22, 1911.
"19. For that no facts are averred in said complaint showing that the defendant was under any duty to have had a rear light on the motor vehicle he is alleged to have been operating at the time of the injuries complained.
"20. For that the averment in the said complaint that the plaintiff's automobile was practically demolished is but the mere conclusion of the pleader, and not an averment of fact.
"21. For that the alleged damages to the plaintiff's automobile, are not sufficiently averred.
"22. For that the alleged damages to plaintiff's automobile are not specified or set out except by the statement of the conclusion of the pleader.
"23. For that said complaint fails to state the facts showing the alleged damages to plaintiff's automobile."
Pleas 3 and 4 are as follows:
"3. That at the time of the injuries complained of, the truck of defendant was standing under the rays of a light, to wit, the light of the moon, and could be plainly seen.
"4. That at the time of the injuries complained of, the truck of defendant was standing under the rays of a light thrown by the headlights of plaintiff's automobile, and could be plainly seen."
It appears that on the night of the accident defendant was traveling toward Selma, his truck laden with tents and poles. Near the scene of the collision it was discovered that one of the tires was flat, whereupon the truck was driven to the side of the road and stopped. Being without some essentials to repair and reinflate the tire, defendant decided to leave the truck where it was until morning, Defendant went to sleep on top of the load, and a helper retired beneath the truck. Around midnight plaintiff came along the road in his automobile, traveling in the same direction in which the truck was turned, and his automobile collided with the tent poles protruding from the rear of the truck. In plaintiff's car was one Heath, who was then driving.
Plaintiff's evidence tends to show that, as he approached the parked truck, he descended a slight decline in the road; that his lights were burning properly, but, due to the decline in the road, the lights brought into view only the lower part or body of the truck, and did not disclose the poles; that plaintiff's car was turned out to the left to pass the truck, but that the truck was parked "angling," the protruding poles extending into the road, and that his car collided with these; that plaintiff could not or did not see these poles, or a red bandanna tied at the end of the poles; that the poles were loaded on top of some tents; and that it was not a moonlight night.
Defendant's evidence tended to show that the truck was parked straight along and near the side of the road, parallel with the ditch on the right, and that the poles did not protrude across the road; that the truck was loaded first with the poles, and that the tents were piled upon the poles; that a red bandanna was tied at the end of the poles; that it was a moonlight night. On cross-examination, defendant testified that "there was no light on the truck; that he had front lights on the truck when he left Montgomery, but no tail lights, and it was driven all the way from Montgomery without a tail light; that when the truck was parked the lights were turned off."
Hobbs, Craig Brown, of Selma, for appellant.
It is only motor vehicles operated or driven upon the public highways that are required to have lights displayed upon them. Code 1923, § 6264. A motor vehicle which is parked, as distinguished from a mere casual or momentary stop, is not being "operated or driven." City of Harlan v. Kraschel, 164 Iowa, 667, 146 N.W. 463; Griffin v. McNeil, 198 Iowa, 1359, 201 N.W. 78; State v. Bixby, 91 Vt. 287, 100 A. 42; Carey v. State, 206 Ala. 351, 89 So. 609; Frazier v. State, 203 Ala. 276, 82 So. 526; Molton v. State, 105 Ala. 18, 16 So. 795, 53 Am. St. Rep. 97. The averment in the complaint, "and negligently parked the same at night without a rear light," is insufficient as an averment that the vehicle was parked without a rear light during the period from one-half hour after sunset to one-half hour before sunrise. Code 1923, § 6264. Pleas 3 and 4 were not immaterial, but did present a defense to the cause of action attempted to be set up in the complaint. It was error to strike them. Code 1923. § 6264. Where there is evidence in the case which might tend to confuse the jury, a charge like charge 4, requested by defendant, is properly requested and should be given.
Joseph R. Bell, of Hayneville, and Harry W. Gamble, of Selma, for appellee.
It is required that a parked vehicle be lighted. Code 1923, § 6264. The averment that the unlawful act occurred "at night" is sufficient. Code 1923, § 9457; Burns v. Reeves, 127 Ala. 127, 28 So. 554. It is not necessary that a complaint set out the evidential facts upon which the plaintiff relies for a recovery. It is only requisite that its averments be sufficiently intelligible as to matters put in issue that a material issue can be taken upon them. Lawrence v. Seay, 179 Ala. 386, 60 So. 937. The sustaining of motion to strike pleas 3 and 4 was within the sound discretion of the trial court, and cannot be brought into review. Code 1923. § 9458; Davis v. L. N., 108 Ala. 660, 18 So. 687; Tuscaloosa R. U. Co. v. Lewis, 207 Ala. 464, 93 So. 386.
The report of this case contains a copy of the complaint, which consists of one count. The defendant in the court below challenged its sufficiency by 23 grounds of demurrer.
It is insisted here that there is no duty on the operator of a motor vehicle to display a light on a motor vehicle while it is parked on or adjacent to a public highway in the state of Alabama. Section 6264 of the Code of Alabama of 1923, reads as follows:
" Every motor vehicle, operated or driven upon the public highways of this state shall be provided with adequate brakes in good working order and sufficient to control such vehicle at all times when the same is in use and a suitable and adequate bell, horn or other device for signaling, and shall, during the period from one half hour after sunset to one half hour before sunrise, display at least two lighted lamps on the front and one on the rear of such vehicle, which shall also display a red light visible from the rear. The rays of such rear lamp shall shine upon the number plate carried on the rear of such vehicle in such manner as to render the numerals thereon visible at least fifty feet in the direction in which the motor vehicle is proceeding. The lamps on such vehicle need not be lighted when the vehicle is standing under the rays of a light and can be plainly seen. Every person operating or driving a motor vehicle on the public highways of this state shall also, when approaching a crossroads outside the limits of a city or incorporated village, slow down the speed of the same, and shall sound his bell, horn or other device for signaling in such a manner as to give notice and warning of his approach."
Appellant here insists that the automobile "cannot possibly be said to have been in operation on the public highways of this state at the time of the collision. It not only was not being operated or driven at that time, but was (by reason of the blow-out and the consequent removal of one of its tires, and the further fact that its left front wheel was still jacked up) in such condition that it could not be operated or driven." We think it was the intention of the Legislature to require a motor vehicle parked on a public highway in this state to display the rear light mentioned in section 6264 of the Code, and that this intention is evidenced by said section quoted.
The defect in the single count of the complaint, as we see it, is that it is not averred that the truck or automobile was parked on a public highway. Everything charged in the count might be true, and the automobile might not have been parked on the public highway. Unless the automobile was parked on the public highway, the facts set out in the complaint do not disclose an obligation, as a matter of law, to display a rear light. For this reason the complaint was defective, and the demurrer thereto should have been sustained.
The defendant interposed, among others, two pleas, namely, pleas 3 and 4, which, at the conclusion of the evidence, were stricken on motion of the plaintiff. Plea 3 is a plea that the automobile was standing in the moonlight, and plea 4 is a plea that it was standing in the rays of the headlights of plaintiff's automobile. These pleas were not an answer to the complaint, and the trial judge did not abuse his discretion in striking them at the instance of plaintiff.
Charge 4, requested by appellant, reads as follows: "4. I charge you, gentlemen of the jury, that the fact, if it be a fact, that defendant's truck had no rear light on it when and while running along the highway from Montgomery to the point where its stopped and parked, should not be considered by you as evidence of any negligence of the defendant for which he is being sued in this case."
It is our opinion that this charge was erroneously refused. This record does not disclose any causal connection between the rear light on the truck while running along the highway from Montgomery to the point where it stopped and the injury of which plaintiff complains.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.