Barbour v. Shebor

Personal Injury From Automobile Collision. 1. Negligence; Wantonness; Complaint. — -A complaint alleging that the injuries from a collision of defendant’s automobile with plaintiff were received as a proximate consequence of the wanton act of the servant or agent of defendant, while acting within the line and scope of his authority as such, is sufficient without attempting to set out the facts constituting the wanton conduct. 2. Municipal Corporations; Use of Streets; Automobile Collision; Pedestrians. — The doctrine of look and listen as applicable to railroad crossings is not applicable to pedestrians on streets for injuries by automobile collisions; the use of the streets by drivers and pedestrians being equal, each should recognize the rights of the other, and both are required to exercise ordinary care. 3. Same; Contributory Negligence; Pleaclmgs. — A plea alleging that plaintiff, seeing an automobile rapidly approaching voluntarily stepped immediately in front of it (construing such words to indicate close proximity) is a good plea in answer to a count in simple negligence by a pedestrian struck by an automobile. 4. Pleading; Demurrer; Good in Part. — Where a plea is addressed to each and every count of the complaint it is equivalent to filing it separately to each count, and hence, if the plea was good as to one count, it was error to sustain a demurrer generally to the plea. 5. Charge of Court; Singling Out Facts. — A charge asserting that the mere fact, if it be a fact, that defendant’s automobile was being operated at a negligent rate of speed, does not entitle plaintiff to recover, was properly refused as singling out a particular fact, and as not having regard as to whether the negligent act was the cause of plaintiff’s injury. G. Same; Applicability to Fviclence. — Where there was evidence tending to support the count for wanton injury, a charge asserting that damages could not be awarded for the purpose of punishing defendant, was properly refused. 7. Same.- — Charges asserting that contributory negligence would defeat recovery were properly refused where there was evidence tending to support a count for wanton injury. (Anderson and Sayre, JJ., dissent in part.)

Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action' by Ben Shebor against W. O. Barbour for personal injury. Judgment for plaintiff, and defendant appeals. Count B is as follows: “Plaintiff claims of the defendant the sum of $15,000 as damages, for that, whereas, heretofore, and on, to wit, the 4th day of March, 1910, the defendant was running and operating an automobile upon the streets of Birmingham, Jefferson county, Alabama, when the same ran against plaintiff, a pedestrian, who was crossing said street, and plaintiff was thereby greatly injured, bruised, and mangled-[Here follows catalogue of injuries, which are alleged to be permanent, and the damages resulting therefrom.] And plaintiff avers that his said injuries and damages Avere proximately caused by reason of, and as a direct consequence of, the Avanton acts of the defendant’s servant or agent Avhile acting Avithin the line and scope of his authority as such.” The third plea sets up contributory negligence, in that plaintiff negligently attempted to cross said street Avithout looking for said automobile, Avhich Avas then and there approaching in rapid motion on said street, and was struck by said automobile and injured, although he kneAV automobiles were likely to pass on said street at any moment. Count A'was similar in all respects to count B, except that it alleged simple negligence. According to the record, count 3 of the complaint was Avithdrawn. Plea 5 was a plea of contributory negligence, alleging that plaintiff well knew that automobiles passed along said street at frequent intervals at a rapid rate of speed. Nevertheless, with, such knowledge, plaintiff voluntarily attempted to cross said street in front of and in dangerous proximity to an automobile, then and there approaching in dangerous proximity to him, without looking for the said car, and Avas struck by said car. Plea 6 was of contributory negligence, alleging that plaintiff had looked and had seen the said automobile approaching him on said street in rapid motion, and knowing that, if said automobile struck him, great bodily injury avouIc! result to him, nevertheless plaintiff, with such knowledge, and while seeing said automobile, voluntarily stepped immediately in front of said rapidly moving automobile, and was struck and injured. The folloAving charges were refused to the defendant: (1) “The mere fact, if it be a fact, that the defendant’s automobile Avas being operated along Eleventh avenue at a negligent rate of speed, does not entitle the plaintiff to recover against the defendant in this case.” (4) Affirmative charge as to count B. (6) “If you believe the evidence, you cannot award the plaintiff any damages for the purpose of punishing the defendant.” (7) ‘If you believe, from the evidence, that plaintiff on the occasion complained of acted in a manner in which an ordinarily prudent person would not have acted under the same circumstances, and his said conduct was the proximate cause of his injuries, then you must find for the defendant.” (10) “If you believe the evidence in this case, the plaintiff was guilty of negligence.” (11) “The court charges you that it was the plaintiff’s duty, before crossing Eleventh avenue at the intersection of Fourteenth street, to look for vehicles or automobiles on said Eleventh avenue; and the court further charges you that, if you believe from the evidence that plaintiff did see defendant’s automobile approaching him on Eleventh avenue, it Avas his duty to use reasonable care to prevent a collision Avith said automobile.” (12) “Tf you believe, from the evidence, that the defendant’s automobile at the time of the accident Avas being operated at a greater rate of speed than that fixed by law, still the court charges you that you cannot find for the plaintiff, if you further believe from the evidence that plaintiff saw the defendant’s automobile approaching him in rapid motion, and thereafter negligently Avent in front of same, and that his so doing was the proximate cause of the alleged injury.” (13) “If you believe from the evidence that the plaintiff was guilty of the slightest negligence which proximately contributed to his alleged injuries in attempting to cross Eleventh avenue in front of defendant’s automobile after seeing the same, if you believe from the evidence that he did see it coming, and while it was approaching in dangerous proximity to Mm, then your verdict must be for the defendant.’’ (14) “If you believe from the evidence that plaintiff was negligent in crossing or attempting to cross Eleventh avenue in front of and in dangerous proximity to the defendant’s said automobile, and that said negligence proximately contributed even in the slightest degree to the injury received by him by being struck by defendant’s said automobile on Eleventh avenue, then the court charges you that plaintiff cannot recover any damages on account of the mere failure of the person in charge of the defendant’s automobile to keep a proper lookout for plaintiff, if you believe a proper lookout was not kept, nor on account of a mere failure of the person in charge of said automobile to sound the gong of his said car, if you believe no gong was sounded.” The court erred in overruling the demurrers to count B. — A. G. S. B. B. Go. v. Guest, 144 Ala. 173; B. B. L. & P. Go. v. Williams, 158 Ala. 318. The court erred in sustaining demurrers to plea 3 as an answer to count A. — B. B. é P. Go. v. Williams, supra. On the same authority plea 3 was a good plea as to count B. The court erred in sustaining demurrers to plea 6 as an answer to counts A. and B. — Merriloeatlier v. Sayre M. & M. Go., 49 South. 916. On the same authority the court erred in sustaining demurrer to plea 5, as an answer to counts A and B. Counsel insist that count B was not for wanton or wilful injury, and did not even state a cause of action in simple negligence, and that defendant was entitled to the affirmative charge thereon. For the same reasons they insist that no damages could be awarded for the purpose of punishing the defendant. Counsel discuss other assignments of error relative to evidence and charges, bnt -without further citation of authority. By failing to use the word “negligently” stepped and using the word “voluntarily” stepped in plea 6, it was rendered demurrable.- — L. & N. v. Orr, 121 Ala. 489. Pleas must go beyond the mere averment of negligence as a conclusion, and must aver a state of facts to which the law attaches negligence. — Lockhart v. Sloss Co., 51 South. 627; B. R. L. & P. Co. v. Selhorst, 165 Ala. 478; B. R. L. & P. Co. v. Dickinson, 154 Ala. 523. The defendant had the benefit of all defenses under pleas to which the demurrers were not sustained, and hence, cannot complain.- — B. R. L. & P. Co. v. Willis, 142 Ala. 220; Bhahan v. A. C. 8., 115 Ala. 190. Counsel discuss other .matters assigned- as error, but without further citation of authority.