Evans v. Alabama-Georgia Syrup Co.

SAYRE, J.

All the Judges, except myself, concur in the opinion that the second plea was bad as being a mere conclusion of the pleader, and that the judgment ought to be reversed for error in overruling the demurrer to that plea. They cite T. C. I. Co. v. Herndon, 100 Ala. 451 , 14 South. 287 ; Osborne v. Ala.. S. & W. Co., 135 Ala. 571 , 33 South. 687 ; So. Ry. v. Shelton, 136 Ala. 191 , 34 South. 194 ; So. Ry. v. Hundley, 151 Ala. 378 , 44 South. 195 . I dissent. In my judgment the pleas numbered 3 and 4 are no better in any respect than plea 2, *88 and they all alike submitted to the jury a perfectly intelligible and meritorious issue of fact. It cannot. be true in every case that a plea of contributory negligence must aver a state of facts to which the law attaches the conclusion of negligence. “The judge has to say whether any facts have been (averred and) established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred — Pollock on Torts, 365 (parenthesis supplied). In many cases the question whether due care and caution have been used is, in the nature of things, a question of fact, and this, though the evidence be without conflict. In every case, unless it be a case where res ipsa loquitur, the pleader must allege facts and in allegation draw the conclusion for which he contends. I think our cases have recognized these principles. — Lord v. Mobile, 113 Ala. 360 , 21 South. 366 ; West v. Thomas, 97 Ala. 622 , 11 South. 768 . I can find no essential difference between the plea held bad and those held good except that in the latter the so-called mere conclusion is covered by a mass of verbiage while the gist of all of them is the same. It is that the plaintiff negligently stepped into the hole described in the complaint. To require the defendant to aver every element contained in the situation would be to impose upon it an impossible task. And if the defendant had been able.to reproduce in averment every detail of the situation, it would still have been for the jury to say whether plaintiff had been guilty of contributory negligence. The office of the plea is to inform the plaintiff of the facts relied on in bar of the action stated in the complaint. Plaintiff, having been by implication invited upon the premises, had a right to assume that a pitfall had not been left in his way. Therefore a plea averring that he had failed *89 to look for the hole into which he fell,' and so had stepped into it, would have been bad as imposing upon him the duty to look for the hole. And yet he could not walk as one blindfolded. It was his duty, notwithstanding the presumption of safety which he might indulge, to look about him as a man of reasonable prudence will in every place and under all circumstances. Whatever the place and whatever the circumstances, it was his duty to exercise a general care for his own safety. If there ivas anything to be seen, heard, or otherwise known by the senses exercised with reasonable prudence, though not bent upon the discovery of the particular peril into which he fell, it was his duty to know it; and if his failure to know contributed proximately to his injury, he cannot recover. How, then, can a failure to exercise this general care be averred except in a general way? To aver that the hole could have been seen and avoided by a person exercising reasonable care and that the plaintiff negligently Stepped into it, as was the manner of averment adopted in other pleas, would seem to be an averment of everything necessary to a good plea. And yet such a plea does not meet the objection taken by the demurrer any more satisfactorily than does the form of averment adopted in plea 2. The fact seems to be that, while both forms of averment are in part conclusions not ordinarily j>ermitted in the allegation of matters of defense, they do state, as nearly as is possible in the reasonable use of language, the ultimate fact upon which the defendant was entitled to rest a valid defense — that the plaintiff stepped into the hole, whereas its character and surroundings were such that no prudent man would have done so even though the hole was unguarded and he without warning of its presence. The court could not have otherwise stated the case to the jury. It was, therefore, under the peculiar *90 circumstances of this case, only necessary to state that plaintiff did an act which contributed to his injury, and to characterize that act as negligently done. This plea 2 did. The rest did no more.

Other members of the court direct me to state also their conclusion that the error which they find was not cured by other parts of the record.

Reversed and remanded.

All the Justices concur, except Sayre, J., who dissents.