Holt v. Fountain

120 So. 149, 218 Ala. 661, 1929 Ala. LEXIS 29

• Court: Supreme Court of Alabama
• Decided: January 31, 1929
• Docket: 1 Div. 483.
• Status: Published

Opinions

PER CURIAM.

The material averments of the complaint appear in the foregoing statement of the case.

The only question here presented is the action of the court in striking from the complaint the elements' of damage claimed therein, that plaintiff contracted pneumonia, and her constitution was weakened and undermined as a proximate result of the alleged negligent act of defendant in causing or permitting the highway to remain unsuitable for safe travel by reason of loose dirt and mud. and thereby causing the car in which plaintiff was riding to become mired or stuck in the mud.

The cause was originally assigned to Justice GARDNER, who prepared the opinion in the case, but upon consideration of the cause in consultation a majority of the court were not in accord therewith, but entertain the opinion that, in view of the explicit averments of the complaint showing a' direct causal connection between the negligence alleged and the consequential injury,- the motion to strike should have been overruled, and the question presented as one of fact. The majority further think that this conclusion is not in conflict with the authorities noted 'in the opinion of Justice GARDNER, which is set out below as the dissenting opinion in the cause.

It results that the judgment is reversed, and the cause is remanded.

Reversed and remanded.

8AYRE, THOMAS, BOULDIN, and FOSTER, JJ., concur. BROWN, J., not sitting.