Southern Railway Co. v. Prather

COLEMAN, J. The action is in case, and was instituted by the appellee to recover damages for personal injuries sustained, and for damages done to personal property. Including counts added by amendment, the entire complaint consisted of seven counts. A demurrer was sustained to the first count, and plaintiff withdrew the third count. This appeal is prosecuted from the rulings of the court upon the pleadings, adversely to the appellant, the defendant in the trial court. The material questions raised by the grounds of demurrer to the fourth, fifth and seventh counts of the complaint are, whether the injury sustained by plaintiff resulted proximately from the wrongful or negligent conduct of the defendant, as averred in these several counts. Pretermitting for the present, the question as to whether the ordinance of the city of Anniston is sufficiently stated in the second count, each of the counts under consideration bases the cause of action upon the violation of certain ordinances of that city. The second count avers the existence of an ordinance which prohibited any railroad from allowing its cars to stand upon the public crossing of the streets for a longer period 'than five minutes. The fourth count undertakes to set out the city ordinance, which has a provision similar to that averred in the second count. The fifth count sets out the city ordinance, which declares it to be unlawful in placing cars or trains near any street crossing, “to fail to leave space free from obstruction, less than the full width of the roadway of the street, at such crossing.” [593] The seventh count sets out an ordinance which declares that “No person shall obstruct any street in any manner calculated to delay any company in carrying their apparatus to or from any fire,” etc. It may be conceded for the purpose of the argument, that each of these counts aver a violation by the defendant, of the several municipal provisions set out in the several counts. The counts now under consideration show, however, that plaintiff approached the crossing in his buggy, and found it obstructed by the cars of the defendant, contrary to the city ordinances; that there were double tracks, both of which, it seems, from some of these counts, were occupied by the cars of the defendant. He undertook to drive around these cars, and made a “short turn” in order to get across, and in doing so his buggy collided with the rails of defendant’s track so violently as to throw him upon the ground, to his personal injury. The defendant is liable for all damage resulting proximately from a violation of valid city ordinances, made for the protection of the public, but is not liable for damages which do not result proximately from such causes; nor can it be said, that a violation of a statute or ordinance made for the benefit or protection of certain persons or classes, gives a right of action under all circumstances to persons or classes not within its purposes. The defendant’s cars remained stationary, and the injury resulted from the attempt of the plaintiff to cross the tracks in their obstructed condition. In the case of the Elyon Land Co. v. Mingea, 89 Ala, 521, 529, we said “It is not negligence per se, for one who knows the dangerous condition of a highway to persist in travelling over it. He may lawfully proceed to do so if the act under the circumstances of the particular case does not evince a want of ordinary care on his part.” This case cited that of City Council of Montgomery v. Wright, 72 Ala. 411. In the latter case the facts are, that there had been a washout extending about two feet or more into the sidewalk, but there was a sipace of about seven feet, which furnished a safe way for pedestrians, and which was in constant use as such. In attempting to pass along the sidewalk at night, the plaintiff, ¡who had knowledge of the defect, stepped into the washout and was injured. This court held, that the plaintiff was not guilty of negligence per se in at [594] tempting to walk along the sidewalk, but that it was a question for the jury. The decisions are not altogether in harmony as to what constitutes the proximate cause of an injury, resulting from obstructions of a highway. Henry County v. Jackson, 44 Am. Rep. 274, and note, p. 278; Turner v. Buchanan, 42 Am. Rep. 485; 16 Am. & Eng. Encyc. of Law, pp. 436, 440 and notes; Pittsburg R. R. Co. v. Staley, 41 Ohio St. 118; 52 Am. Rep. 74. Under our construction, the complaint does not present the case of injury resulting to a person who abandons the highway and seeks a crossing by some other route. The counts other than the seventh clearly show that defendant had a double track, and that on one side its cars extended from one direction into the crossing, and on the other side its cars extended into the crossing from an opposite direction, and that there was sufficient space left of the public crossing over which plaintiff could pass, by driving in front of the cars on one side, and then by making a short turn between the cars, he could pass in front of the cars on the other track, and never leave the highway. ■ Putting this construction on these several counts, the action is brought within the influence of the cases of Mingea, supra, and Wright, supra, and showed a good cause of action, but subject to the defense of contribuory negligence. The seventh count charges no more than simple negligence. The averment that the failure to remove the cars was wanton negligence is a mere conclusion of the pleader, not authorized by the facts averred. It is not fairly inferable from the facts averred that the defendant placed the cars on the public crossing for the purpose of causing injury, or failed to remove them from any reckless indifference to consequences, being conscious that such failure would probably result in injury. In fact, i t does- not appear that the cars could have been removed, after notice, before plaintiff was injured. — L. & N. R. R. Co. v. Anchors, 22 So Rep. 279; A. G. S. R. R. Co. v. Burgess, 22 So. Rep. 169. Again, the ordinance set out in this count, declares that “no person shall obstruct any street in any manner calculated to delay any company in carrying their apparatus to or from any fire.” The plaintiff bases his right of action in the seventh count upon the provision of this ordinance, but nowhere alleges that any company was [595] obstructed in carrying its apparatus to or from the fire, nor does it show that the damage resulted from the cause that any such company was thereby obstructed. Good pleading requires the pleader to set out so much of an ordinance as is relied upon to support the cause of action, and not the mere conclusion of the pleader. In this respect the second count should be amended. Under the recent decisions of this court, plaintiff not being an employe, was not required to aver the name of the agent of the defendant by whose negligence or misconduct the alleged injury was sustained. — Birmingham Railway & Electric Co. v. The City Stable Co. in MS. and authorities cited. Reversed and remanded.