American Bolt Co. v. Fennell

SIMPSON, J. The action in this case was brought by the appellee against the appellant for damages on account of injures received from being run over bjr a team of mules, drawing a dray, belonging to the defendant. The general affirmative charge was given, as to the third and fifth counts of the complaint, in favor of the defendant, leaving only the first, second, and fourth counts, and count x, for consideration. It is insisted, first, that the demurrer should have been sustained to the first count of the complaint, because said count does not show that the defendant violated any duty which it owed to the plaintiff. The count alleges that plaintiff was 'walking on the sidewalk of Thirty-Second street, a public street and highway of the city, where he had a right to be, when he was struck by defend [490] ant’s team, and that it Avas the result of the negligence of defendant’s servant, in charge of said team, in allOAVing said team, to run over him. Pedestrians have a right to the uninterrupted use of the sidewalk, and the said count is not subject to the demurrer. — Fielder v. Tipton, 149 Ala. 608, 42 South. 985, 8 L. R. A. (N. S.) 1268. For like reasons the demurrer to the second count in the complaint Avas properly overruled, as Avas also the demurrer to the fourth count. It Avas not necessary to allege that the sidewalk Avas for the use of pedestrians only, as the Iuav affixes that use to a-sidevralk. — Fielder v. Tipton, supra,; Elliott on Roads & Streets, p. 17. Moreover, the amendment did allege that the sidewalk Avas for the use of imdestrians. Under our decisions, the general statement of negligence in count x Avas sufficient, and, if the plaintiff Avas not exercising proper care, that Avas a matter of defense. The plaintiff and the defendant had equal rights in the street, and, Avhile the sideAvalk is the place for pedestrians alone, ;yet pedestrians have the right also to walk across or along the streets, and it is the duty of both pedestrians and travelers by vehicle to recognize the right of each to be upon the street, and it is the duty of travelers by vehicle to keep the same under control, so as not to injure pedestrians in the proper exercise of their rights. — Kathmeyer v. Mehl (N. J. Sup.) 60 Atl. 40; Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. R. A. (N. S.) 345; Elliott on Roads & Streets, p. 622. The causal connection betAveen the negligence and the injury is sufficiently shown by the allegations of said count, and there is no merit in-the .suggestion that the allegation that the defendant’s servant Avas “acting within the line and scope of his duty” means that it Avas AA-ithin the line and scope of his duty “to run over and [491] knock down appellee.” That expression means simply that, while acting within the line and scope of his duty —to wit, driving the dray in the business of the master ; — he performed that duty so negligently and carelessly as to cause the injury. There was no error in sustaing the objection to the questions to the witnesses as to whether it was negligence to strike the mules in order to urge them across the track. The question of negligence vel non was for the jury to determine on the facts related, and not on the opinions of others. Besides, it does not require any expert testimony to tell whether it is negligence to strike a mule. The nature of the animal, and the relation of lashes to his good behavior, are matters of common knowledge to the jury as well as to'any witness. — Ferguson v. Hubbell, 97 N. Y. 507, 49 Am. Rep. 544. There was no error in overruling the motion for a new trial. The judgment of the court is affirmed. Tyson, C. J., and Dowdell and Denson, JJ.. concur.