Opinion
7 Div. 661.
October 28, 1930. Rehearing Denied November 18, 1930. Reversed on Mandate January 13, 1931.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Action for personal injuries and property damage by O. W. Robertson against C. O. Duncan. From a judgment for plaintiff, defendant appeals.
Affirmed.
Certiorari granted by Supreme Court in Duncan v. Robertson (7 Div. 994) 222 Ala. 131, 132 So. 58.
The complaint alleges that plaintiff, while driving his automobile along a city street, on coming to a small bridge on said street, met "the motor truck of defendant which was being driven by defendant's agent or servant, and meeting plaintiff, and plaintiff charges that defendant's said agent or servant, whilst acting within the scope of the duties of his employment as such, negligently ran said truck into plaintiff's automobile, and as a proximate consequence of the negligence aforesaid plaintiff was injured and damaged," etc.
The complaint concludes: "Plaintiff charges and avers that it was night time and defendant's truck had no lights burning thereon in violation of the laws of the State of Alabama, hence this suit."
The demurrer takes the points (a) that the count is too vague, indefinite, and uncertain to inform defendant of what he is called upon to defend; (b) that it fails to aver who the agent was; (c) that it is not averred that the failure of the truck to have lights burning was the proximate cause of the injury.
Culli, Hunt Culli, of Gadsden, for appellant.
Counsel argue for error in rulings on pleading and charges, citing Berry on Automobiles (4th Ed.) 203; Bowles v. Lowery, 5 Ala. App. 555, 59 So. 696; Morrison v. Clark, 196 Ala. 676, 72 So. 305; Stewart v. Smith, 16 Ala. App. 461, 78 So. 724.
L. B. Rainey, of Gadsden, for appellee.
Driving at night without lights is negligence per se. Sheppard v. Johnson, 11 Ga. App. 280, 75 S.E. 348; Darby v. Jarrett, 26 Ohio App. 194, 159 N.E. 858; Alabama Code 1928, § 1397.
The complaint in this case consisted of one count. The action was for damages resulting from a collision between appellee's automobile and a truck of appellant driven at the time by his agent.
The demurrer to the complaint was properly overruled. The allegations of injury or damages and of negligence by the agent of appellant in operating or driving the truck were sufficiently specific to apprise defendant of the nature and character of the evidence to be expected.
The evidence as to the collision and the facts incident thereto was in conflict. Its weight or probative force was for the jury to determine. There was no error in refusing the affirmative charge.
The oral charge of the court in connection with the several written charges given at the request of appellant properly stated the law governing the issues involved upon the trial of this case. We discover no reversible error in this connection and the assignments of error on this point cannot be sustained.
The judgment of the lower court from which this appeal was taken will stand affirmed.
Affirmed.
Reversed and remanded on authority of Duncan v. Robertson (7 Div. 994), 222 Ala. 131, 132 So. 58.