Smith v. Clemmons

Demurrer to count 1 of appellee's complaint, taking the point that it failed to sufficiently apprise defendant of the place where the wrong and injury complained of occurred; that is failed to allege that it occurred in a public road, was overruled without error. More specifically, as the argument goes, the point is that the count failed to show that at the place of the occurrence in question defendant was under duty not to run over, against, or into plaintiff's mare, because the "Bridge road," for aught appearing may not have been a public road or highway. A road is a place where one may ride, drive, or walk, and we generally mean a highway when we say road. Webster's New Internat. Dict. sub. "road." But, aside from that, defendant was under duty, prima facie at least, not to run over, against, or into plaintiff's mare, whether on a public or private road. The general allegation that the thing was done negligently was enough. This disposes of the question of duty. Nothing said in Stewart v. Smith, 16 Ala. App. 461,78 So. 724, suffices to change our view as to this.

Nor were counts 1 or 2 otherwise defective in the matter of acquainting defendant with the place in which he was alleged to have committed the wrong complained of. The allegation of both counts is that the wrong was done in the "Bridge road, in Lauderdale county, Ala." That was enough. Some cases involving charges of negligence against railroads in running over animals may require more definite allegations of place. But that grew out of the statute (section 1711 of the Code of 1876). That section was significantly changed in later Codes by the omission of language which had been construed to mean that "the place should be averred to be at a certain locality along the line of the road, describing its distance and direction from a named depot, or other known point." But that change in the statute law seems not to have made much impression on the court, so that greater particularity in the allegations of place is probably still required in suits against railroads than in cases of this character. This subject is considered more at length in Bugg v. Green, 215 Ala. 343, 110 So. 718. We find no error at this point.

Substantially the same argument is repeated on those assignments which charge error in the refusal of the general charge requested by defendant as to each count separately. There was no evidence directed expressly to the point that the "Bridge road" was a public road, by which appellant means, as we suppose, a road maintained at the public expense, or perhaps, a road which the public were entitled to travel without let or hindrance, but the evidence showed that the accident in which plaintiff's mare was injured occurred on the "Bridge road," in Lauderdale county, a road which all the parties were using at the time as a detour from the "Jackson highway" and from this evidence it was open to the jury to infer that it was a road at the time in common use and so a public road as alleged in some of the counts of the complaint.

Appellant complains that there was no proof that defendant drove his automobile recklessly, without having regard for the use and traffic of the highway, as some of the counts charge. The evidence tended to show — in fact, it was not denied — that defendant in the nighttime, without lights on his car, drove it so rapidly as to be unable to avoid running into plaintiff's team — standing then on the extreme proper edge of the road — after discovering plaintiff's situation, if, indeed, he ever discovered it until in actual contact with it, and this notwithstanding plaintiff's efforts to warn defendant of the danger by loud calls. This made the issue of recklessness — meaning merely an extreme form of negligence — and the question whether such recklessness involved disregard of the traffic on and use of the road matters for determination by the jury to which the court left them. Defendant's driving may have been reckless, that is, very negligent — under the circumstances — though in other circumstances it might have been prudent enough so far as mere speed is concerned. It was not necessary to constitute recklessness that the speed should have been in excess of the statutory permit. So, likewise, it may have been reckless, though less than the statutory prescription.

Count 2 charged that defendant's conduct was reckless and wanton. Under the evidence as we have stated it, this was a question for the jury. Written charge 9, requested by defendant, was properly refused. Punitive damages were recoverable if defendant's conduct was reckless and wanton, but, on the facts, it appears with reasonable certainty that plaintiff got a verdict for compensation only.

There can be found no sufficient reason for a reversal in the matter of plaintiff's argument to the jury. Perhaps some of it was stated in an exaggerated form — as when counsel said that defendant drove like an insane man. No doubt, counsel meant only that defendant's driving in the circumstances evidenced an extreme indifference to the safety of others on the road such as no reasonable man would be guilty of, but, whether so or not, the matter of opinion at issue between the parties was one for settlement by the jury; it did not call for settlement by the court's exclusion of remarks by plaintiff's counsel. Moreover, the court on defendant's motion excluded this and another argument of no particular moment (Jones v. Colvard [Ala. Sup.] 109 So. 877¹) from the jury, and this, in any event, left defendant without complaint sufficient to induce a reversal of the judgment.

The witness Robert Clemmons had plaintiff's team in charge at the time of the accident. We think there was no error in the court's refusal to permit defendant to ask the witness whether at the time of the trial he was prosecuting defendant on the criminal side of the court on account of the same occurrence. If it may be inferred that the prosecution in such a case is the result of interest, bias, or ill will, as appellant suggests, still proper practice required that defendant should first have inquired as to the state of the witness' feeling toward him (defendant). An admission of unfriendly feeling would have obviated the necessity or propriety of further inquiry along the line of the collateral inquiry thus sought to be put on foot.

So defendant should first have asked for the opinion of the witness Robert Clemmons as to the value of the horse he swapped for the mare injured in the accident under inquiry, and then, if his answer was unsatisfactory, he might have cross-examined him by asking what he paid for the animal he had parted with on the swap. This, like the ruling just above noticed, results from the necessity of expediting the administration of justice by the reasonable avoidance of unnecessary issues.

Plaintiff's question to the witness White, as to what the mare would bring after she was hit, was merely another way of eliciting his competent opinion as to the value of the mare after her injury and was permissible, in connection with the evidence as to her value before the injury, as going to establish the measure of plaintiff's damage.

In the course of the trial it developed that plaintiff lived in Tennessee, and thereafter, after the evidence had closed, defendant, assuring the court that he had not previously known that plaintiff lived in Tennessee, moved the court to dismiss the suit for want of security for costs, as provided by section 7249 of the Code. On the authority of Brown v. Bamberger,110 Ala. 342, 20 So. 114, we hold that there was no error in the court's refusal at that time to grant the motion.

The motion for a new trial raised no new questions.

Judgment affirmed.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.

¹ 215 Ala. 216.