Anniston Electric & Gas Co. v. Rosen

48 So. 798, 159 Ala. 195, 1909 Ala. LEXIS 671

• Court: Supreme Court of Alabama
• Decided: February 4, 1909
• Status: Published

Opinions

McGLELLAN, J.

The injury complained of was suffered by the plaintiff, in person and property, in consequence of the collision therewith of a street car then in operation on a public thoroughfare in the city of Anniston. The original complaint, contained two counts, to which defendant’s (appellant’s) demurrers were sustained. After amendment, the complaint consisted of counts 1 to 4, inclusive. All, save the fourth, would found the liability of the defendant upon the breach of duty by the servant of the defendant, arising out of plaintiff’s imperiled condition. The principle is familiar, and the sixteenth ground of the demurrer, addressed to these counts, takes the point that it is not averred that the servant in question knew of plaintiff’s peril in time to have prevented the injury.

The relative rights of travelers in public streets and street cars operated therein have been defined as being equal, not exclusive, in favor of or against either.— Schneider v. Mobile L. & R. R., 146 Ala. 344, 40 South. 761. The exercise of the common right, by each, must be such as not to unreasonably hinder or endanger either in tbe use of the street; and upon the operative of the street car rests, as of course, the duty to be dilligent in keeping a lookout for persons using the street and to bring to the operation of the car, under such circumstances, such measure of care and .prudence as the common right enjoyed by the traveler and the street car suggest. This necessarily imposes upon the carrier the duty to operate its cars, in public streets, under such speed, as that, if persons or property be upon or dangerously near the track of the street railway, the car may be, with skilled, application of stopping appliances, stopped, and injury thereto averted. But this duty is qualified to the extent that the operative of the car may assume that apparently adult persons, or property, such as horses and vehicles in the control of persons apparently adult, will leave, in time to avert injury, the track or dangerous proximity to it; but. the stated qualification is also qualified by the requirement that the operative is forbidden to rely upon the stated assumption beyond the point where prudence and care would suggest the stopping of the car, such prudence and care being suggested, to a reasonably prudent. man, by the reasonable appearance of inability upon the part of the party imperiled to remove himself or property from danger, or from such circumstances as would indicate, to the reasonably prudent operative, that the party imperiled, or likely to become so, is unconscious thereof. — Schneider v. Mobile L. &. R. R., supra. On the traveler upon the street the duty rests to “always * * * look for an approaching car, and, if the street is obstructed, to listen, and in some instances to stop. * * *” Birmingham R. L. & P. Co. v. Oldham, 141 Ala. 195, 199, 37 South. 452.

As stated before, all of the counts> except the fourth would ascribe the negligent misconduct, resulting in the injury here involved, to a breach of duty after discovery of peril. The statement of the doctrine declaring the duty relied upon, in breach, for a recovery by this plaintiff, announces in terms the condition to the creation of the duty, viz., knowledge of the peril with which the party injured is circumstanced before his injury. This knowledge has been otherwise referred to in the descriptive term “aware,” meaning “informed.” The requisite knowledge is of the fact that the party injured was in peril. Manifestly this condition (knowledge) to the duty (pretermitting tyanton or willful misconduct, to he later considered) cannot arise out of a breach of duty to look .out for persons, etc., in peril, whatever the place of injury. If the duty be to keep a dilligent lookout, and the duty be merely negligently breached, the consequence is the opposite of knowledge, namely, want of knowledge, and that, on this phase of the subject, attributable only to the failure to observe that course of conduct which would have probably led to knowledge. — Sou. Ry. v. Bush, 122 Ala. 470, 26 South. 168. If a motorman, whose duty it. is to keep a dilligent lookout for travelers, etc., on public streets traversed by his car, forsake his duty and engage in a diverting conversation with a passenger on his car, and a traveler, whose peril and inability to extricate himself therefrom would have been discovered by the operative, had he kept the lookout required, is- injured, the proximate cause, aside from wanton or willful misconduct therefor must be ¿scribed, not to the stated condition of peril in which the traveler was placed, but to the operative’s dereliction in not keeping the lookout prescribed. He did not know the peril stated, because he violated his duty to look. Such a breach of a duty, unless raised by the circumstances to the character of' wrong commonly called “willfulness” or “wantonness,” may be defended and defeated as ground for a recovery by the contributory negligence of the traveler, if attending his conduct, in failing to observe the care due from him (traveler) in placing himself in a position wherein injury to him might result from a breach by the operative of the duty to keep a dilligent lookout. This must be true, because the order of causation, put in motion by the negligence counted on, viz., failure to keep a dilligent lookout, was not broken by the creation, by discovery of the peril by the operative, of a subsequent duty to employ all means to avert injury to one whose peril is known to the dorelid. operative. — L. & N. R. R. Co. v. Young, 153 Ala. 232, 45 South. 238, 16 L. R. A. (N. S.) 301. When the sub-' sequent duty is raised, as stated, then the initial negligence of the injured'party becomes a condition only, upon which the thereupon arising duty to avert the injury operated to afford the proximate cause of the injury, unless the imperiled party is, on his part, concurrently with or subsequently to the negligence of the operative of the car, after discovering the perilous situation of the injured party, contributorily negligent, which, if found, exempts the defendant from the consequences of the subsequent negligence of its employe.— L. & N. R. R. Co. v. Young, supra.

The relative rights of travelers and street cars, in public streets, as we have restated them, necessarily negative any relation of either to the streets or to- the other as trespassers. The right to be thereon exists in each, and the duty each owes to the other, in the premises, is, in keeping with the common right of each, to avoid, by the exercise of due care and prudence, injury and embarrassment in the use of the street. But the fact that a traveler is not a trespasser in using the street cannot affect to alter the duty, for or against either the car operativé or the traveler, where one’s condition of peril is known to the operative. Whether one is or is not a trespasser, the condition to the application of the principle of the negligent breach of duty after peril is discovered is the same. The duty to avert injury to one imperiled is the same, whether his relation to the dangerous agency theretofore was wrongful or not, whether his situation of peril was the result of right or wrong conduct; provided, of course, the operative knew of the peril to which the injured party was subjected. Whenever the knowledge stated is brought to the operative, his duty is' to employ all means, known to one skilled in his place, to avert injury.

Coming to the more aggravated misconduct — willfulness or wantonness, as these terms are applied in cases of injury to person or property — with reference to the performance of the duty arising where the beforestated peril is known to the operative, our decisions establish these conditions precedent to the ascription of the more aggravated wrong t» the alleged derelict party: That the injury was the result of a direct intention to inflict it, or that the injury was the result of an act or omission to act as duty required; the action or failure to act being then taken or omitted with the consciousness that such act or omission would probably eventuate in injury. The standard for determination of the inquiry whether the act or omission to act was wanton or intentional must necessarily be the same, regardless of the reason for the creation of the duty in the premises. Given the duty to avert injury, the character of the act or omission to act coloring it as merely negligent, or as wanton or willful in negation of mere negligence, depends upon the presence, at the time the duty should have been performed, of the conditions we have restated for wantonness or willfulness vel non. In natural consequence, the proximate cause of an injury to one known to have been in peril may be the product of simple negligence or of willful or wanton wrong. If characterized by the elements essential to make a case of willful or wanton wrong, then contributory negligence of the imperiled party, such as negligent failure to conserve his own safety after he has become aware of his peril, is, as in cases generally, no defense. But if the duty to avert injury to one known to be in peril is unobserved, from inadvertence or mistake, and without the conscious indifference to probable consequences stated before, then contributory negligence of the injured party — concurrent with or subsequent to that of the party charged, after discovery of peril — such as the negligent failure to conserve his own safety after he has become' aware of his peril, is a defense, and will defeat a recovery for such breach of duty predicated upon discovery of the injured party’s peril. In L. & N. R. R. Co. v. Young, supra, we noted many of our decisions declarative of the principles stated in respect of initial, subsequent, and contributory negligence, and hence do not recite them.

Applying these principles to the complaint as amended, the sixteenth ground of demurrer should have been sustained to counts 1 and 3. Both' of these counts allege that plaintiff’s position of peril was known to the motorman, “or by the exercise of reasonoble care” could have been known to him. The alternative averment is, of course, not the equivalent of an averment of the requisite knowledge. The pleader had for this alternative averment high authority in B. R. L. & P. Co. v. Brantley, 141 Ala. 614, 37 South. 698. In that cause this court approved charge 3, requested for the plaintiff therein, which charge declared, in effect, among other things, that, since the duty to keep a diligent lookout was on the motorman, the “law charges the motorman with seeing the exposed condition of the wagon or of the plaintiff. * * *” Evidently these counts were drawn in the light of the Bnmtley Base. We feel compelled, upon principle and authority, to condemn the proposition quoted from the approved charge. If the proposition be sound, then actual knowledge is not an. essential condition to the creation of the duty to avert injury after discovery of peril. On the contrary, the condition is suppliable as a matter of presumptions arising from the mere existence of the duty to keep a lookout. This court, in Osborne v. Ala. S. & W. Co., 135 Ala. 571, 577, 33 South. 687, ruled that, in pleading, notice is not the equivalent of knowledge, thus in consequence, we think, refuting the proposition, less strong than that treated in the Osborne Case, that from, the mere.existence of a duty the law will, in such cases as this presume such actual knowledge of peril as the performance of the duty would have afforded. To attain such a result as the Brantley Case, approves, it must he presumed that the motorman performed his duty to keep a diligent lookout, and still further, and additionally, to presume that such lookout would have resulted and did result in his actual knowledge of the peril. Of course, to conclude actual knowledge from such bases is assumption not supported by fact.

Count 2 avers that the motorman knew of plaintiff’s peril and that of his property, and “failed to exercise due care and diligence to avoid injuring plaintiff, when the exercise of such care and diligence would have avoided injuring him.” After describing injuries received, both to person and property, it is further averred in this count that “defendant’s agent or servant in charge of and operating said car saw and knew of his peril, but notwithstanding this he wantonly and recklessly or intentionally ran said car against him, and that they did not use the means at hand to prevent said collision and injury when the use of said means would have prevented same.” It is evident from a reading of the count that it is inconsistent and repugnant, as objected in the twenty-seventh ground of demurrer. In one phase it avers a negligent failure to take means to avert injury after discovery of peril, and latterly therein ascribes the injury to wanton and reckless or intentional driving of the car against plaintiff, and still later therein avers simply that means at hand were not used to avert injury, as could have been done by such use. The lines between wanton and willful wrong and such wrong as results from simple negligence ,of course, compel, in pleading, the observance of the distinctions between the two. The primary pleading should leave no doubt of the character of the wrong imputed — whether wanton or willful, or merely negligent. Duplicity in this respect is not tolerable. — L. & N. R. R. Co. v. Markee, 103 Ala. 160, 15 South. 511, 49 Am. St. Rep. 21. The question whether a given count is in simple negligence, or for wantonness or willfulness, oftenest arises on the propriety of the plea of contributory negligence, permissible as a defense to the former, but not to the latter. So many of our cases have taken the course consequent upon a determination of the question stated, and accordingly allowed that species of plea. But, where the count assumes to charge both, and the demurrer takes the point, the court cannot aid the inaccuracy of pleading by choosing when the pleader has not chosen.

Count 4, after setting forth the rightfnlness of plaintiff’s presence in and use of the public street, and which was a place — street crossing — where a great many people and turnouts were accustomed to pass and repass, and were so doing where the injury occurred, avers, in substance, that it was the duty of defendant’s servant or agent to so operate the car as that it might be undei such control as that it might be brought to a full stop before striking a person or thing on the track; that this car was so negligently operated, in that it was run under such rapid and reckless rate of speed that the operative was unable to bring the car to a full stop before striking plaintiff and his property, after the operative had discovered the peril of plaintiff and his property on the track. This count cannot be held to charge willful or wanton injury, for the reason that it is not averred therein that the operative of the car knew of the conditions of accustomed frequent use of the street crossing in question, so as to impute to him knowledge of the probability of the presence there on that occasion, on the track or in dangerous proximity to it, of persons or property liable to injury by his car. — M. & C. R. R. Co. v. Martin, 117 Ala. 367, 385, 23 South. 231, and its many successors in ruling on this point. . The count, then, is in simple negligence; and we must determine whether the negligence imputed is initial or subsequent, as related to the presence of plaintiff on or dangerously near the track — whether, to be more concrete, the negligence ascribed was a breach of duty predicated upon the peril alleged to have been discovered, or, on the other hand, was anterior in order of committal to such discovery of peril. If the averments refer to initial negligence, as indicated, then, of course, negligence of the plaintiff, if present on the occasion in putting himself or his property in a position of peril, would be a plead-able defense. If, on the other hand, the negligence averred refers to a duty breached after discovery of peril, then such negligence of the plaintiff, if present, would not be pleadable for the reasons we have before stated.

The court below, in overruling the demurrer to the several pleas of contributory negligence to the fourth count, evidently construed the count as charging negligence anteidor to a breach of duty raised by discovery of peril. We affirm the correctness of this construction of the count. Since a willful or wanton wrong is not therein imputed, to construe the count as charging subsequent negligence after peril discovery would be to ignore the unequivocal averment of duty, and its breach, in respect of the operation of the car prior to and independent of the discovery of plaintiff’s peril. The idea sought to be stated in the count is, in short, that the operative was so negligent in the operation of the car, at or about the street crossing mentioned, that when be discovered plaintiff’s peril he was powerless to avert the impact by the use of all means at hand to stop the car. So interpreted, the count was not subject to the demurrer assailing.it, though we are not prepared to affirm, and do not consider the question, that the broad statement of the duty set forth in the count is sound — a matter not tested or raised by any ground of the demurrer interposed. Our recent cases of B. R. L. & P. Co. v. Brown, 152 Ala. 115, 44 South. 572, and B. R. L. & P. Co. v. Jones, 153 Ala. 157, 45 South. 177, are noted as bearing on these questions. The first of these decisions involved an injury not occurring on a track in a public highway; and the second dealt with an injury to an infant, not chargeable with contributory negligence, and hence the holding therein, in one phase of the case, that the negligent failure of the operative to keep a dilligent lookout, if proximately causing the injury, rendered the defendant liable, regardless of whether the peril of the child had been discovered or not. These cases are, therefore, not in point-in the determination of this appeal. -

Turning to the pleas of contributory negligence, and applying the principles announced before, none of these pleas set up matter in defense of the subsequent negligence charged in counts 1 and 3. The eighth ground of plaintiff’s demurrer took the objection indicated. However, such pleas were, as the court below ruled, answers to the fourth count of the complaint. These pleas, as matter of defense to the fourth count, were not, we think, subject to any of the objections to substance, suggested by the demurrer.

The court erred in overruling defendant’s demurrer to counts 1, 2, and 3, for the reasons stated, though we should add that- those grounds of defendant’s demurrer assailing the counts for failure to aver the name of the alleged derelict servant and to designate the amount claimed for each element of damage were not well taken Our system of averring, in such cases as this, negligence in general terms, has become fixed beyond hope of change, even if it were thought desirable. The elements of damage alleged to have been suffered by plaintiff and his property were definitely enumerated, in the complaint ; and we know of no ruling by this court, nor good reason, justifying a departure from the universal practice, in this state, of stating in the complaint, without apportioning, the total damage claimed for the injuries, averred.

None of the assignments rest on the giving or refusal of special instructions for either litigant. There are assignments complaining of portions of the court’s oral charge. Specific treatment of these assignments is unnecessary, in view of the conclusions stated before.

The last assignment is as follows: “In refusing the request of defendants counsel to’ write ‘Given’ or ‘Refused’ on each of the several charges from 1 to 8, iniclusive, and sign-his name thereto separately.” From the bill it appears these special charges were written on one sheet of paper. The court made one indorsement of “Refused” on this sheet; but counsel for defendant requested the court to enter the indorsement, stated in the quoted assignment, on or opposite each of said charges 1 to 8, inclusive. The court declined to do so, treating the request as single of all of said charges. This action was proper. Counsel not having separated these charges, the court was under no duty to do so. Special charges should, if intended, by counsel requesting them, to be separate requests, and not in bulk, always be presented to the court on separate sheets or pieces of paper.

The errors indicated require the reversal of the judgment and the remandment of the cause.

Reversed and remanded.

Tyson, C. J., and Dowdell, Simpson, and Anderson, J.J., concur.