Cook v. Standard Oil Co.

BROWN, J. Appellee’s insistence that the ruling of the ■court on the demurrer to the special plea, if error intervened, must be pronounced error without injury, is founded on the assumption that the evidence shows without dispute that the plaintiff was guilty of negligence which proximately contributed To the injury complained of, and does not take into account the -doctrine often announced that “contributory negligence is a -special affirmative defense, and must be specially pleaded with particularity, and no other acts than those specially pleaded can 'be proved on trial, and, if proved, cannot be made the predicate for a verdict.” — Blalock v. Blacksher, 11 Ala. App. 545, 66 South. 863; South. Ry. Co. v. Shelton, 136 Ala. 191, 34 South. 194; Mobile Electric Co. v. Sanges, 169 Ala. 356, 53 South. 176, Ann. Cas. 1912B, 461. (1) A plea of contributory negligence, to withstand demurrer, must state the facts constituting the negligence, and the facts must be such as that the conclusion of negligence follows as a matter of law. — Johnson v. L. & N. R. R. Co., 104 Ala. 241, 16 South. 75, 53 Am. St. Rep. 39; Tenn. C., I. & R. R. Co. v. Herndon, 100 Ala. 451, 14 South. 287; Johnson v. B. R., L. & P. Co., 149 Ala. 529, 43 South. 33; B. R., L. & P. Co. v. Barrett, 179 Ala. 279, 60 South. 262. (2) It takes no argument to show that the defendant’s pleas numbered 3 and 4 do not meet these requirements, and that they are guilty of stating the mere conclusions of the pleader. — L. & N. R. R. Co. v. Calvert, 170 Ala. 565, 54 South. 184; B. R., L. & P. Co. v. Saxon, 179 Ala. 136, 59 South. 584; Southern Cotton Oil Co. v. Walker, 164 Ala. 33, 51 South. 169. (3, 4) The plaintiff had the right to assume that the driver of the wagon would rein his team to the right-hand side of the road, so as to permit the plaintiff’s vehicle to pass, until it became obvious that the driver was making no effort to do so or The danger of a collision was imminent. — B. R., L. & P. Co. v. *451 Williams, 158 Ala. 389, 48 South. 93. The defendant’s plea A is lacking in averment showing that after it was obvious that the driver of the defendant’s wagon was making no effort to rein his team to the right-hand side of the road or after the danger of a collision was imminent, the plaintiff nevertheless continued to propel his car ahead, and thereby proximately contributed to the injury. The demurrer takes this point, and should •have been sustained. (5) The only plea in the case not subject to the demurrer was the general issue, and as there was evidence tending to show that the driver of the team was guilty of negligence, we cannot pronounce the ruling on the demurrer to the special plea of contributory negligence error without injury. For the error pointed out, the judgment is reversed, and the cause remanded. Reversed and remanded.