Opinion
6 Div. 674.
January 17, 1918.
Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.
Allen, Bell Sadler, of Birmingham, for appellant. J. T. Stokely, of Birmingham, for appellee.
Action for damages for injuries to animals resulting from negligence of employés of the appellee (defendant) in the operation of a locomotive on appellee's railway. A number of head of cattle belonging to the appellant (plaintiff) were injured. Besides the general issue, defendant interposed three pleas which, with the demurrers, will appear in the report of this appeal. No brief for the appellee has been filed in this court.
Aside from the legal effect of the fact that a plea is no stronger than its weaker alternative averment (Jordan v. Ala. City, etc., Ry. Co., 179 Ala. 291, 60 So. 309; Shahan v. Brown, 179 Ala. 434, 60 So. 891, 43 L.R.A. [N. S.] 792; Union Cemetery Co. v. Jackson, 188 Ala. 599, 603, 65 So. 986), plea 2 was faulty in assuming to characterize as negligence an act or omission that may or may not have been negligent when measured by the standard the law recognizes and applies, viz. what reasonable care, prudence, or diligence would have suggested and required of one circumstanced as this servant was, in charge of these animals, in the discharge of his duty in the premises. This fault in the plea was not specified in the demurrer, as our statute requires. Code, § 5340. As readily appears, none of the grounds of demurrer were well taken. In view of the reversible error to be noted, it is not amiss to observe that the evidence in the present record affords no support for the first alternative averment in plea 2. As asserted in the brief for appellant, plea 3 was defective because it omitted the averment that the agent's or servant's alleged negligent act was an act within the line or scope of his employment. This fault was not specified in the demurrer (Code, § 5340), and hence the appellant can take nothing on that account. While plea 3 is not otherwise as well drawn as it might be — doubtless it should be recast before the retrial to which the cause must be remanded — it does sufficiently aver negligence on the part of the servant in omitting to ascertain whether a train was approaching before he drove the cattle on the railroad.
Plea 4 is unobjectionable; and the demurrer was properly overruled. There the allegation is that the animals were driven along the defendant's track.
The court erred in giving to the jury, at defendant's request, this special charge:
"(9) The court charges the jury that if they find the [that] Molton Fuqua saw the cattle upon the track, then it was his duty to immediately drive them off the track, and if he could have done so and failed to do so, this was negligence, and if this negligence proximately contributed to the injury and death of the cattle in such way that they would not have been injured if he had immediately driven them off, then they will find for the defendant."
This instruction placed an absolute duty upon young Fuqua of driving the cattle off the track, and predicated the conclusion of negligence on his part upon his failure to have done so, if he could, by any means or at any hazard, have accomplished this before the cattle were injured. In the circumstances hypothesized in the charge all the law required of this servant was that he should have exercised the care, prudence, and diligence an ordinarily prudent man would have exercised under like circumstances. By exacting too high a duty of this agent of the plaintiff, this instruction was necessarily highly prejudicial to the plaintiff.
In the absence of evidence tending to show that young Fuqua drove these cattle on the railroad of the defendant on this occasion, it was not proper to admit evidence tending to show that on previous occasions he had driven cattle on the defendant's railroad at the point where the plaintiff's cattle were injured, especially when it was not shown that in so doing young Fuqua was at the time engaged in the service of this plaintiff.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur.