Western Ry. v. McPherson , 146 Ala. 427 ( 1906 )

DENSON, J.

The complaint in its averments is -sufficient, and not subject to the demurrer made to it. Therefore the demurrer was properly overruled. It must, be remembered, too, that the case of S. & N. Ala. Ry. Co. v. Schafner, 78 Ala. 567, relied on by counsel for appellant, was decided with reference to a statute (section 1711 of the code of 1876) which has been repealed by omission from the codes subsequent to 1876. — Western Ry. of Ala. v. Sistrunk, 85 Ala. 352, 5 South. 79.

The defendant pleaded the general issue and five special pleas, upon all of which issue was joined. The bill of exceptions is very brief, and states that: “The evidence was conflicting on each and all of the material issues joined between the parties. There was some evidence tending to prove all or most of the allegations contained in the complaint, and there was some evidence tending to disprove such allegations, and there was some evidence tending to prove the facts, set up. in each and all the pleas of the defendant.” It is averred in the complaint that the injury occurred “within or near the corporate limits of Lanett, Ala., in said county, within one-fourth of a mile of the public road crossing.” The averment that the injury occurred within one-fourth of a mile of a public road crossing was material with respect to locating the place where the injury occurred, but it was not descriptive of the identity of the subject of plaintiff’s action; hence it was not necessary that it should have been proven strictly as alleged, as charge 1 required.— 1 Greenleaf on Evidence (15th Ed.) § 61. The charge was properly refused.

The complaint, unnecessarily it may be, averred several acts of negligence on the part of the engineer in the conjunctive form. In this state of the pleading it was incumbent on the plaintiff to prove all of the acts averred, and it was the right of the defendant to have the court instruct the jury as requested in charges 2 and 3 with respect to a single act of negligence. The court erred in refusing said charges 2 and 3.

Charge 4, it is insisted by the appellant, is substantially as charge 1, which was given at the request of the defendant in the case of Choate v. Sou. Ry. Co., 119 Ala. 611, 24 South. 373. We cannot assent to the insistence. Charge 1 in that case simply asserted the doctrine that an unavoidable accident imposes no liability. The comment of the court was: “If it were an unavoidable accident, as hypothesized in that charge, it could not in any sense be chargeable to the negligence of anybody.”

Charge 4 under consideration might be construed as placing the burden on the plaintiff of showing that the injury was not due to an unavoidable accident. The complaint avers that the injury was done within or near the corporate limits of Lanett, Ala., and the bill of exceptions must be construed as showing that there was evidence tending to show that the injury occurred within the corporate limits of Lanett. If it did, then the burdewas on the defendant to acquit itself of negligence and of showing a compliance with the statutory requirements and to prove to the reasonable satisfaction of the jury its plea of unavoidable accident. The charge was properly refused. — Code 1896, § 3443; A. G. S. Ry. Co. v. Boyd, 124 Ala. 525, 27 South. 408; Central of Ga. Ry. Co. v. Stark, 126 Ala. 365, 28 South. 411; Sou. Ry. Co. v. Reaves, 129 Ala. 457, 29 South. 594.

Charge 5 correctly stated the law with respect to the burden of proof, and its refusal constitutes reversible error. — Code 1896, § 3443; A. G. S. Ry. Co. v. Boyd, supra; Sou. Ry. Co. v. Reaves, supra.

Charge 6 states a correct proposition and should have been given.

For the errofs in refusing charges 2, 3, 5, and 6, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Weakley, O. J., and Haralson, Tyson, Dowdell, and Simpson, JJ., concur.