Birmingham Railway, Light & Power Co. v. Aetna Accident & Liability Co.

de GRAFFENRIED, J.

— The Corey Highland Land Company, a corporation, owned an automobile which it had insured with the Aetna Accident & Liability Company against loss or damages suffered in collisions. The automobile collided with a car of the Birmingham Railway, Light and Power Company, and was damaged. The insurance company paid all the damages suffered by the owner of the automobile on account of such collision, and the insurance company, claiming that the collision was due to the actionable negligence of the Birmingham Railway, Light & Power Company or of its agents or servants while acting in the line or scope of their employment, brought this suit, not in the name of the owner of the automobile, but in its own name, to recover the sum which it had paid out on account of such injury to such automobile.

1. Section 2490 of the Code of 1907 provides that “in all cases where suits are brought in the name of the person having the legal right for the use of another, the beneficiary must be considered as the sole party on the record.”

Section 3667 of the Code of 1907 provides that “when judgment is rendered against the plaintiff, in any suit brought in the name of a nominal plaintiff for the use of another, judgment for costs must be rendered against the beneficiary, or his personal representative

The above provisions of our present Code, in which we have supplied the italics, were referred to by this court in Ex parte Bromberg, 121 Ala. 361, 25 South. 994. In that case this court said: “The statute having thus changed the common-law rule and established the use of plaintiff’s relation to the suit as that of a principal party, and having placed him upon the same footing with other plaintiffs in reference to his liability for costs, the same necessity existed for requiring him to secure costs when residing out of the jurisdiction as existed in the case of other nonresident plaintiffs.” Indeed, since the passage of the above-quoted statute the nominal plaintiff has in reality not been a party to the record; his presence in the record being purely pro for-ma. — Ex parte Bromberg, supra.

In the instant case the complaint and each count of it, when fairly construed, shows that the Aetna Accident & Liability Company is the only party who lost anything by reason of the injury to the automobile, and that any recovery which may be had in this case must be for the exclusive benefit of said accident company. This being true, the said accident company has a right to amend its complaint by adding to the complaint, as the nominal plaintiff, the name of the Corey Highland Land Company, and proceed with the cause just as if the suit had been originally brought by the Corey Highland Land Company for the use of said accident company.

As the judgment in this cáse must be reversed, for reasons set out below, and as the plaintiff has, as a matter of course, the right to make the above amendment, it is unnecessary for us to discuss in this opinion, the question as to whether the accident company had the right, in its own name, to bring this suit, for the wrongs alleged in the complaint, against the defendant. — Southern Ry. Co. v. Stonewall Ins. Co., 177 Ala. 327, 58 South. 313.

It matters not to the defendant whether the automobile was or was not registered in compliance with the laws of the state, which require all automobiles to be registered. If the automobile was not registered, the owner thereof may be guilty of a violation of one of the criminal laws of the state, but that fact in no way affected the general duty, which the defendant owes to the law, to so operate its cars as not to- negligently injure the person or property of any person. The mere fact, if it be a fact, that the automobile was not registered had no causal connection whatever with the injury of which the plaintiff complains, and that fact, if it be a fact, in no way contributed to the injurv to the automobile. — A. G. S. R. R. Co. v. McAlpine, 71 Ala. 545; Atlantic C. L. Ry. v. Weir, 63 Fla. 74, 58 South. 641, 41 L. R. A. (N. S.) 307; Wilson v. L. & N. R. R. Co., 146 Ala. 285, 40 South. 941, 8 L. R. A. (N S) 987.

Counsel for appellant — defendant in the court below ■ — refer us to the case of Dudley v. Northampton Street Railway Co., 202 Mass. 443, 89 N. E. 25, 23 L. R. A. (N. S.) 561, in Avhich a conclusion contrary to the above was reached; but, in our opinion, the true rule in such cases was laid doAvn by this court in A. G. S. R. R. Go. v. McAlpine, supra, and in the splendid opinion which AAras written for the Supreme Court of Florida by Whitfield, C. J., in Atlantic C. L. Ry. v. Weir, supra.

3. In the case of Central of Georgia Railway Co. v. Blackmon, 169 Ala. 304, 53 South. 805, this court said : “The rule as laid doAvn by this court, as in other jurisdictions, including England, is that Avhile the plaintiff’s intestate’s negligence in being on the track would defeat a recovery for initial or antecedent negligence, yet he could recover if defendant’s servants, in charge of the train, became aware of the intestate’s peril in time to avoid running over him by the proper use of preventive means, * * * to conserve his safety, provided the intestate himself toas free from negligence after becoming conscious of his danger.”

When the defendant, Avhose negligence, committed stub sequent to an act of negligence of the plaintiff, causes an injury, relies upon the concurring negligence of the plaintiff to defeat the plaintiff’s right of recovery, the defendant must show that the negligent plaintiff was conscious of his danger, and after being so conscious of his danger, continued in his negligence until it was too late for the defendant to prevent the injury. If the plaintiff desists in his act of negligence in time for the defendant, by the use of reasonable preventive measures, to prevent the injury, and the defendant, knowing or being in a position where he should, by the exercise of ordinary care, know of the plaintiff’s peril, fails to use such reasonable preventive measures, and by reason of such failure the plaintiff is injured, then in such a case the defendant is liable. In other words, when subsequent negligence is relied upon by a plaintiff, and the evidence shows that the negligence of the plaintiff, after he became aware of his peril, continued to the last moment and contributed to his injury as a proximate cause, such negligence of the plaintiff precludes recovery on his part, although the defendant’s negligence operates up to the same moment. — Butler v. Rockland, Thomason & Camden Street Railway Co., 99 Me. 149, 58 Atl. 775, 105 Am. St. Rep. 267.

“This rule [of liability for subsequent negligence] has no application where the negligence of the person injured and of defendant are concurrent, each of which at the very time when the accident occurs contributes to it.” — 29 Cyc. 531. The quoted rule from “Cyc.” applies, in this state, only when the plaintiff is conscious of his peril. — Central of Georgia Railway Co. v. Blackmon, supra.

It seems to us that plea 5, which the reporter will set out, tested by the above well-known rules, is good as a plea setting up the continuing negligence of the plaintiff, and if all of the facts set up in it are true, then that it is an answer to the counts of the complaint setting up the subsequent negligence of the defendant as the basis of the plaintiff’s right to recover. If it be true, as is alleged in the plea, that the driver of the automobile knew that the defendant’s car was approaching, and that he could not probably get his car off the track and thus get out of the ivay of the approaching car, and with this knowledge he negligently continued to run his automobile down the track in the direction of the car, “meeting the car ,” then the plaintiff was guilty of an act of negligence which continued up to the time of the injury, and which necessarily contributed proximjately to the injury of the automobile. There is evidence in this case tending to show that all that the driver of the automobile did, after he got on the track, was to try to get off of it, and that in trying to do so, the automobile skidded along down the track in the direction of the car, but we are dealing, not with tendencies of the evidence, but with a question of pleading. All reasonable intendments must be indulged by us against the pleader in construing plea 5, but the plea is nevertheless entitled to a fair interpretation at our hands, and, so interpreting it — placing upon its words, not a strained, but a fair construction— this plea was not subject to demurrer, and the trial judge committed a reversible error in sustaining a demurrer to it.

4. We have above considered all the questions presented by this record which will prove of value to the parties on the next trial; and, for the error pointed out, the judgment of the court below is reversed, and the cause is remanded to the court below for further proceedings in accordance with this opinion.

Reversed and remanded.

Dowdell, C. J., and Anderson and Mayfield, JJ., concur.