Mobile & Montgomery Railway Co. v. Crenshaw , 65 Ala. 566 ( 1880 )

SOMERYILLE, -J.

— It has been settled by this court, and the proposition is otherwise well supported by authority, that “ contributory negligence ” is regarded as a defense which must be sustained by satisfactory evidence ; and the absence of reasonable care and caution on the plaintiff’s part need not be averred by him in the declaration or complaint, nor proved by him in the firs'! instance. — Railroad Co. v. Shearer, 58 Ala. 672; Gov. St. Railroad v. Hanlon, 53 Ala. 70; Railroad v. Gladmon, 15 Wallace, 401; Hoyt v. Hudson, 41 Wis. 105 (22 Amer. Rep. 714).

2. The averment of negligence in the complaint is made with a proper degree of certainty, under the liberal rules of pleading recognized by the Code (§ 2978). As said by Stone, J., in Leach v. Bush, 57 Ala. 145 (154), “ when the gravamen of the action is the alleged non-feasance or misfeasance of another, as a general rule it is sufficient if the complaint aver the facts out of which the duty to act springs, and that the defendant negligently failed to do and perform, <fcc. It is not necessary to define the quo modo, or to specify the particular acts of diligence he should have employed in the performance of such duty.” — Mobile & Ohio R. R. Co. v. Williams, 53 Ala. 595; Railroad Co. v. Waller, 48 Ala. 459.

3. An averment in a demurrer, that the complaint “ does not show such a state of facts as will entitle the plaintiff to recover,” is a general demurrer, specifying no particular in which the complaint fails to set forth a substantial cause of action, and avails nothing, therefore,. under the statute. Mayor v. Coleman, 58 Ala. 570.

The several grounds of demurrer to the first count of the complaint were, for the foregoing reasons, properly overruled.

4 It has been held by this court, in Nicholson v. Mobile & Montgomery R. R. Co., 49 Ala. 205, that the limitation of sixty days, prescribed by section 1700 of the Code, within which claims for damages against railroad companies must be presented or sued on, does not apply to injuries to the person, and that, as to such claims, the statutory limitation of an action thereon is one year. Our doubts as to the correctness of this decision are not sufficiently strong to induce us to depart from it. The doctrine of stare decisis forbids vacillation in judicial 'decisions, without satisfactory and cogent reasons. There was no error in sustaining the demurrer to the plea presenting this defense.

5. The rules of law in regard to the negligence of an adult, and of an infant of tender years, ¿ are quite different. A child cannot be required to exercise as much care and caution as a person of mature years, but only so much as may be reasonably expected of one of his age and capacity, a matter to be determined by tlie peculiar circumstances of each case. On tbe contrary, ordinary neglect as to a person of full capacity, might be gross negligence as to a child. Kerr v. Forgue, 54 Ill. 482; Railroad Co. v. Gladmon, 15 Wall, 401; Smith v. O’ Connor, 48 Penn. St. Rep. 218; Government St. R. R. v. Hanlon, 52 Ala. 70; Shearman & Red. Neg. §§ 43-44,49; Wharton’s Law Neg. §§ 309-310.

The charge given by the Circuit Court, we think, recognized this principle, and was proper.

The judgment is affirmed.