McVoy v. Chassin , 17 Ala. App. 646 ( 1921 )

This is a suit by the plaintiff (appellee) against the defendant (appellant) to recover damages for personal injury alleged to have been suffered by the plaintiff on account of the negligence of the defendant in the operation of an automobile.

The first count of the complaint claimed damages on account of simple negligence, while the second claimed damages on account of wanton and willful negligence.

The defendant pleaded the general issue and a special plea of contributory negligence to each count of the complaint. Demurrers were interposed and sustained as to the special plea of contributory negligence. The ruling on these demurrers was without error. Contributory negligence is no defense to an action for wantonness or intentional injury. Birmingham Ry., L. P. Co. v. Jones, 146 Ala. 277, 41 So. 146.

To the amended plea of contributory negligence filed to the count of simple negligence demurrers were interposed and sustained, and this ruling of the court constitutes an assignment of error. The plea alleges that —

The plaintiff, "while riding a bicycle east on the north side of Dauphin street, a public street in the city of Mobile, negligently drove or operated said bicycle from the north side of said Dauphin street to the south side of Dauphin street, and negligently run it against the automobile in which the defendant was riding."

Under the general allegation in the plea, it was not necessarily negligent for the plaintiff to drive or operate his bicycle from one side of the street to the other. Creola Co. v. Mills, 149 Ala. 474, 42 So. 1019.

To allege that conduct or acts harmless and prudent in themselves are negligent, or that the plaintiff did such acts, as a mere conclusion of the pleader, is not sufficient. The acts or conduct must be shown to be negligent otherwise than by mere conclusions of the pleader. Montgomery St. Railway Co. v. Shanks, 139 Ala. 501, 37 So. 166; Montgomery St. R. Co. v. Hastings, 138 Ala. 432, 35 So. 412; Watkins v. Birmingham R. Co., 120 Ala. 151, 24 So. 392, 43 L.R.A. 297; Louisville Nashville R. R. Co. v. City of Bessemer, 108 Ala. 238,18 So. 880; Birmingham R. Electric Co. v. Mollie James, Adm'x, 121 Ala. 120, 25 So. 847; Brantley's Case, 168 Ala. 584,53 So. 305.

But, conceding, without deciding, that the plea as a whole was sufficient, its recitals constitute a mere denial of the negligence as alleged in the complaint, and competent to be shown under the plea of the general issue. So if the sustaining of the demurrers was error, it was clearly without injury to the defendant.

This disposes of all the assignments of error raised, and, finding no error in the record, the judgment appealed from is affirmed.

Affirmed.