Opinion
4 Div. 132.
February 22, 1940.
Appeal from Circuit Court, Dale County; J. S. Williams, Judge.
G. D. Halstead, of Headland, and W. L. Lee and Alto V. Lee, III, both of Dothan, for appellants.
The complaint fails to aver facts showing a duty owing by defendant to the injured party or a relationship between the parties giving rise to a duty, and is insufficient and demurrable. Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443; Tennessee C. I. R. Co. v. Smith, 171 Ala. 251, 55 So. 170; Ensley R. Co. v. Chewning, 93 Ala. 24, 9 So. 458; American Ry. Ex. Co. v. Reid, 216 Ala. 479, 113 So. 507. The complaint is demurrable for failure to aver the place or location of the injury and facts showing a duty owing by defendant to the injured party at such place. Authorities, supra; Jones v. Keith, 223 Ala. 36, 134 So. 630. Plaintiff's witnesses having testified to a statement made by Pride about lighting a cigarette, defendants (other than Pride) were entitled to show other statements made by him to others as to whether or not he had a cigarette.
Chas. O. Stokes, of Ozark, for appellee.
The complaint is sufficient in averment to show a duty owing by defendant to plaintiff's child. Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; Feore v. Trammel, 212 Ala. 325, 102 So. 529; Stallworth Turpentine Co. v. Ward, 210 Ala. 595, 98 So. 719. There is a sufficient averment to show relationship and the locus in quo, though the demurrer makes no point as to the latter. Cooper v. Auman, 219 Ala. 336, 122 So. 351; Tillery v. Walker, 216 Ala. 676, 114 So. 137; Watson v. Ingalls, 218 Ala. 537, 119 So. 667; Dozier v. Woods, 190 Ala. 279, 67 So. 283; Harbin v. Moore, 234 Ala. 266, 175 So. 264; W. W. Pickle Co. v. Baskin, 236 Ala. 168, 181 So. 765. It is the duty of motorists on the highway to be constantly vigilant and observe the presence of anything which is at or near the path of his travel. Hubbard v. Thrasher, 26 Ala. App. 252, 157 So. 680; Jones v. Mutual L. I. Co., La. App., 189 So. 169; Vortanian, Law of Automobiles (Ala.). A party's own declarations, not made in the presence of his adversary, are not admissible in his own favor. Alexander v. Handley, 96 Ala. 220, 11 So. 390.
It is unquestionably the law that while a complaint of this character need not set out the quo modo and may charge negligence in general terms, yet it must disclose facts sufficient to show a duty owing the plaintiff by the defendants not to negligently injure him. The present complaint, however, shows that the plaintiff's child was not a trespasser and was at a place where the defendants owed him the duty not to negligently run a car over or against him. Cooper v. Auman, 219 Ala. 336, 122 So. 351; Harbin v. Moore et al., 234 Ala. 266, 175 So. 264.
The complaint could have well been more definite or specific as to the place on the road where the accident occurred, but there was no ground of demurrer as to the indefiniteness of the place of the injury.
The case of Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443, and others cited by appellants' counsel are entirely different from the present case both in point and by way of analogy.
The trial court did not err in not permitting the defendants to prove statements of Pride, the truck driver, and one of the defendants, that he had no cigarettes the afternoon of the injury. It was but a self-serving declaration. Alexander v. Handley, Reeves Co., 96 Ala. 220, 11 So. 390.
There was no error in refusing the requested general charge of the defendants other than Pride. It was clearly a question for the jury as to the negligence of Pride, the driver, and whether or not he was operating the truck as the servant of the Covington Company and was not using the same in and about its business and with its consent, express or implied. Nor was there error in refusing the motion for a new trial.
The judgment of the circuit court is affirmed.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.