Birmingham Ry., Light & Power Co. v. E. & W. Dry Cleaning Co. , 16 Ala. App. 328 ( 1918 )

If the plaintiff's damages were the proximate result of the defendant's negligence, or the negligence of its agents or servants while acting within the scope of their employment, and the plaintiff's servants did not while acting within the line and scope of their employment by their negligence proximately contribute thereto, the defendant is liable. Woodstock Iron Works v. Stockdale, 143 Ala. 550, 39 So. 335, 5 Ann. Cas. 578; K. C., M. B. R. R. Co. v. Foster, 134 Ala. 244,32 So. 773, 92 Am. St. Rep. 25; L. N. R. R. Co. v. Quick,125 Ala. 553, 28 So. 14; Western Ry. Co. v. Mulch, 97 Ala. 194,11 So. 894, 21 L.R.A. 316, 38 Am. St. Rep. 179; Armstrong v. Montgomery Street Railway Co., 123 Ala. 233, 26 So. 349. In the last case cited it was said:

"A person guilty of negligence" should be held "responsible for all consequences which prudent and experienced men, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind."

While one of the witnesses said, with respect to the storm, that "it was one of the worst storms of the entire winter, in my opinion; it was accompanied by very heavy wind and very heavy rain" — this evidence does not show that the storm was unprecedented, or even unusual for that season of the year. Under the evidence, the case was one for the jury.

The special charge upon which the second assignment of error is predicated is faulty in assuming that all of the plaintiff's employés were under duty to see that the awning was not left down, so that it would cause damage to the plate glass front. Although some one of plaintiff's employés, who was charged with no duty with respect to the awning, discovered that it was left down and failed to raise it, it could not be said that this was a negligent act committed by an employé while acting within the line and scope of his employment, and therefore would not sustain the plea of contributory negligence.

This disposes of all matters presented by the assignments of error.

Affirmed.