Opinion
5 Div. 14.
December 11, 1930. Rehearing Denied January 29, 1931.
Appeal from Circuit Court, Chilton County; George F. Smoot, Judge.
Lawrence F. Gerald, of Clanton, A. A. Griffith, of Cullman, and Eyster Eyster, of Decatur, for appellant.
Counts must aver facts out of which the duty to act springs and a negligent breach thereof. Birmingham R. L. P. Co. v. Weathers, 164 Ala. 26, 51 So. 303. There must be actual knowledge of intestate's peril by defendant's servants, and not merely that such servants ought to have discovered his peril. Wood v. Northern Ala. R. Co., 22 Ala. App. 513, 117 So. 496. Actual knowledge of peril, and not that imputed knowledge which, if followed up, would result in knowledge, is essential to subsequent negligence. Young v. Woodward Iron Co., 216 Ala. 334, 113 So. 223. The alleged wanton act of colliding with the automobile is not an alleged wanton killing of intestate. Birmingham R. L. P. Co. v. Brown, 150 Ala. 327, 43 So. 342. Subsequent contributory negligence means negligence after intestate became aware of his own present danger, the immediate approach of the train. Illinois Cent. R. Co. v. Martin, 213 Ala. 619, 105 So. 805. Continuing his way after becoming aware of the approach of the train, would be subsequent negligence of intestate. Snider v. Alabama G. S. R. Co., 210 Ala. 122, 97 So. 209. Plaintiff could not recover if intestate was guilty of negligence, not only subsequent to, but concurrent with, the subsequent negligence of defendant. Alabama G. S. R. Co. v. McWhorter, 156 Ala. 277, 47 So. 84. If intestate saw the train in time to avoid the accident, recovery cannot be predicated on failure to give signals. Central of Ga. R. Co. v. Graham, 218 Ala. 624, 119 So. 655. Where the facts alleged import contributory negligence per se, it was not necessary to expressly characterize intestate's conduct as such. Smith v. Louisville N. R. Co., 219 Ala. 676, 123 So. 59; Hurt v. Southern R. Co., 205 Ala. 181, 87 So. 533; and see Williford v. Atlantic C. L. R. Co., 216 Ala. 311, 113 So. 44; Prince v. State, 35 Ala. 369; Louisville N. R. Co. v. Turner, 192 Ala. 392, 68 So. 277; Bailey v. Southern R. Co., 196 Ala. 134, 72 So. 67.
W. A. Denson, of Birmingham, for appellee.
Counts 4, 5, 6, D, E, F, and J have each been held good against demurrer. Birmingham R. L. P. Co. v. Saxon, 179 Ala. 162, 59 So. 593; Woodward Iron Co. v. Williams, 207 Ala. 601, 93 So. 523; Louisville N. R. Co. v. Abernathy, 192 Ala. 634, 69 So. 59. Neither of defendant's pleas 10, 11, 15, and 17 is sufficient as a defense to the subsequent negligence counts. Lloyd v. Central of Ga. R. Co., 200 Ala. 695, 77 So. 237; Louisville N. R. Co. v. Turney, 183 Ala. 405, 62 So. 885; Appel v. Selma. St. S. R. Co., 177 Ala. 467, 59 So. 164; Alabama G. S. R. Co. v. Smith, 178 Ala. 619, 59 So. 464; Central of Ga. R. Co. v. Foshee, 125 Ala. 213, 27 So. 1006; Herring v. Louisville N. R. Co., 195 Ala. 428, 70 So. 749; Louisville N. R. Co. v. Scott, 23 Ala. App. 132, 122 So. 185; Louisville N. R. Co. v. Rush, 20 Ala. App. 195, 114 So. 21; Woodward Iron Co. v. Williams, supra; Louisville N. R. Co. v. Jones, 191 Ala. 485, 67 So. 691; Duncan v. St. Louis-S. F. R. Co., 152 Ala. 129, 44 So. 418; Johnson v. Birmingham R. L. P. Co., 149 Ala. 531, 43 So. 33; Memphis C. R. Co. v. Martin, 131 Ala. 277, 30 So. 827.
The subsequent negligence counts 4, 5, 6, D, E and F are in all material respects similar to the counts held good in Birmingham R., L. P. Co. v. Saxon, 179 Ala. 136, 59 So. 584, and Louisville N. R. R. Co. v. Abernathy, 192 Ala. 629, 69 So. 57.
The averment that the automobile in which deceased was riding was struck by a train and dragged several hundred yards does not, we think, render it uncertain as to whether his death was caused by the striking or the dragging. It was a recital of the events of one occurrence, the combined effect of which caused the death of deceased. Neither could the servants of defendants become aware of the peril of deceased, unless he was in peril. The fact that the car he was using was struck by the train and dragged down the track and he was thereby killed is a sufficient showing that peril at some time became imminent. We do not think these counts are insufficient in the failure to allege that deceased did become subject to peril.
Count J, a wanton count, is also, we think, free from the objection urged. It seems to us that there is no inconsistency between the allegation that the train ran against the automobile in which plaintiff's intestate was riding and killed him, and the allegation that the automobile was dragged a great distance, etc., as the proximate cause of his death. The latter averment is included in the general terms of the former, and is an allegation of detail, unnecessary though not improper. The collision caused the killing as averred, though there was a dragging, etc., which as a proximate consequence of the collision directly led to the result.
It is also urged that all the wanton counts are defective because they do not sufficiently allege that the wanton conduct was with knowledge that the result would probably kill deceased, but only with knowledge that he would probably be injured. The wanton counts allege that defendant's servants had knowledge that deceased would probably be injured, etc. They allege a wanton injury from which death was the proximate result. We think this is a sufficient allegation of a wanton death. If death was not proven to be the proximate result of the injury, but of some other independent intervening cause, then the allegations are not sustained by the proof. Louisville N. R. R. Co. v. Jones, 83 Ala. 376, 3 So. 902; Armstrong v. M. St. Ry. Co., 123 Ala. 233, 250, 26 So. 349.
The case went to the jury on counts alleging subsequent negligence and wantonness. To them defendant undertook to plead contributory negligence, and the court sustained demurrer to all such pleas. Defendant insists that there was error in this ruling to the extent of holding that pleas 10, 11, 15, and 17 were not good pleas to the counts in subsequent negligence. Pleas of subsequent contributory negligence, as a defense to counts alleging subsequent negligence, must, as pointed out in several of our cases, not only show that plaintiff was conscious of his peril at that particular time, but must also show that plaintiff's alleged negligent conduct was subsequent to or concurrent with the subsequent negligence of defendant. Lloyd v. Cent. of Ga. R. R. Co., 200 Ala. 694, 77 So. 237; Alabama G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 277, 47 So. 84; Bryant v. A. G. S. R. R. Co., 155 Ala. 368, 46 So. 484; Alabama G. S. R. R. Co. v. Smith, 178 Ala. 613, 59 So. 464; Appel v. Selma St. Sub. Ry. Co., 177 Ala. 457, 59 So. 164; Louisville N. R. R. Co. v. Turney, 183 Ala. 398, 62 So. 885.
We still adhere to the statement of the principle as thus expressed. But it is not necessary in pleading subsequent contributory negligence to state in express terms that the contributory negligence was subsequent to or concurrent with the subsequent negligence of defendant, if that condition is otherwise sufficiently shown by the averments of the plea. A plea of this nature was considered in the case of Birmingham R., L. P. Co. v. Ætna A. L. Co., 184 Ala. 601, 64 So. 44. Such allegations were said to show that "the plaintiff was guilty of an act of negligence which continued up to the time of the injury." If plaintiff was negligent up to the time of the injury, it sufficiently shows that such negligence was subsequent to or concurrent with the subsequent negligence of defendant as alleged in the complaint.
We observe that in the case of Lloyd v. Cent. of Ga. Ry. Co., supra, the plea under consideration contained averments of similar import. But we are of the opinion that there was a failure to note the effect of the plea in this respect as discussed in the case of Birmingham, R. L. P. Co. v. Ætna A. L. Co., supra. We cannot therefore follow the case of Lloyd v. Cent. of Ga. Ry. Co., supra, to its conclusion, and conclude that to that extent it should be and is overruled.
In other respects the pleas 10, 11, 15, and 17 as amended seem to contain averments sufficient to show subsequent contributory negligence, and there was error in sustaining demurrer to them as a defense to the subsequent negligence counts.
We do not think it necessary to treat the other questions raised on this appeal, as they are not likely to occur on another trial.
For the error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
All the Justices concur, except BROWN, J., not sitting.