Shelby Iron Co. v. Bierly

Appellant, who was the party defendant in the trial court, assigns for error the action of the court in overruling the demurrers to counts A and B of the amended complaint. This court has held on a similar record that it could not review the rulings in question for the reason that the record does not show what grounds of demurrer were taken against the amended complaint. Shelby Iron Co. v. Bean, 82 So. 92.

The demurrers to pleas 3 and 4 should have been overruled. These pleas stated facts from which the jury may have inferred negligence on the part of plaintiff contributing proximately to his injury, and then drew the inference which the pleader expected the jury to draw. The facts alleged being sufficient unto the end for which they were alleged, this was good pleading. It is for the court to say whether the facts alleged will warrant an inference of negligence; it is for the jury to say, upon the facts submitted to them, whether negligence ought to be inferred. In many cases the question whether due care has been used is, in the nature things, a question of fact to be determined by the jury, even though the evidence be without conflict (Lord v. Mobile, 113 Ala. 360, 21 So. 366; West v. Thomas, 97 Ala. 622, 11 So. 768; A. G. S. R. R. Co. v. Arnold, 84 Ala. 159, 4 So. 359, 5 Am. St. Rep. 354); and in every case, unless it be a case where res ipsa loquitur, the pleader must allege facts and in allegation draw the conclusion for which he contends. Right plainly, it seems from the record and the briefs, the trial judge followed the general principle above stated; but his opinion appears to have been that these pleas did not draw the conclusion of negligence on the part of plaintiff; this for the reason that they omitted to characterize plaintiff's action as "negligently" done. But we think the language of the conclusion of these pleas, viz. (plea 4), "Defendant avers that the said plaintiff, in leaving his place of work and going into the gas (meaning, of course, in the circumstances stated in the plea), was guilty of contributory negligence which proximately caused his injury," and substantially the same language in plea 3 — this language, in our judgment, drew the necessary conclusion from facts which warranted that conclusion. These pleas would not have been more specific in the respect now under consideration had they averred that plaintiff "negligently" did the act alleged.

But it is said that defendant had the advantage of these pleas in plea 8 upon which the case was submitted to the jury; that is, the error committed was affirmatively shown not to have operated to defendant's prejudice. We think otherwise. The pleas in question were similar in a general way to plea 8; but there were circumstantial differences, and it cannot be safely said that plea 8 afforded defendant every advantage offered by the pleas under consideration.

Some of the testimony offered by the plaintiff — that concerning his wife and children — was well calculated to prejudice the defense; but it was given a veneer of relevancy, and we will not say its admission was error.

The charges requested by defendant were all faulty in some respect. They need not be noticed seriatim.

Reversed and remanded.

MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.

On Rehearing.