A team of horses hitched to a delivery wagon of the Jefferson Dairy Company ran away, in the absence of the driver, on Forty-Eighth street in the city of Birmingham, and, turning into Second Avenue North, collided with a huckster's wagon, near which Mrs. Elizabeth Thomas was standing, causing the latter wagon to strike her, as a result of which she died in a few days.
This suit by the administratrix of her estate followed, resting principally upon the alleged negligence of the driver of the team in leaving the team unhitched and unattended in the street. Corona Coal Co. v. White. 48 So. 362, 158 Ala. 627, 20 L.R.A. (N.S.) 958; Excelsior L. Co. v. Lomax, 52 So. 347,166 Ala. 612; ordinance, city of Birmingham.
Defendant interposed numerous pleas of contributory negligence, among which were pleas A-2, E, and F, which were sustained, and the cause tried upon issue joined upon these pleas in connection with the plea of the general issue, resulting in a judgment for the plaintiff, from which defendant has prosecuted this appeal.
These pleas, in substance, set up the alleged negligence of plaintiff's intestate in standing in the center of the street, purchasing fruit from the huckster's wagon and obstructing the street, and preventing free passage of the traffic thereon, and, with knowledge of this situation, negligently failed to make any observation whatever for approaching teams. Defendant also relied upon a violation of the city ordinance as to street obstruction. We are of the opinion that in substantial form defendant had the benefit of pleas B, C, and D in the pleas sustained, above mentioned, and a consideration of the sufficiency of these pleas is therefore unnecessary.
A different conclusion, however, is reached as to plea A-1. This plea adopts the allegations of plea 12, which latter plea sets up the negligence of the plaintiff's intestate in standing in the center of the street in the path and line of traffic which she knew would likely use said street, and with her back to said line of traffic, purchasing vegetables from a wagon standing in the middle of the street and unlawfully obstructing the same, and adds thereto the following averment:
"And defendant avers that said intestate was aware of the approach of said team of defendant in time to have stepped out of the path of the same and prevented being struck thereby, but negligently failed to do so." *Page 307
The counts of the complaint, to which this plea was interposed, each alleged that the defendant's team was unattended, and also disclosed that the team was running away, and the sufficiency of the plea is to be considered in the light of these averments of the complaint. We are of the opinion the above-quoted averments added to plea 12 were not subject to any objection interposed thereto by demurrer. It is insisted that the averment is objectionable as a mere conclusion of the pleader. This objection is answered by the language of this court in discussing the pleas of contributory negligence there interposed in the case of Pace v. L. N. R. R. Co., 52 So. 52, 166 Ala. 519, wherein the court said:
"A statement, in form a conclusion, approaches occasionally so nearly the ultimate facts as to make the effort at further analysis futile for the practical purposes of pleading. An averment of negligence, whether stated as a cause of action or as a defense, is not required to be as specific as the proof essential to support it."
In the Pace Case, supra, it was argued the pleas were defective in failing to aver that the plaintiff had time to do that which he was charged as having negligently omitted. The pleas were sustained, notwithstanding, upon the theory that the charge of plaintiff's negligent failure was sufficient and inclusive of the idea that there was reasonable time for the act.
Here the plea avers, not only that plaintiff's intestate negligently failed to step out of the path of the approaching team, to prevent being struck thereby, but that she was aware of its approach in time to have done so. The above-cited authority we consider as conclusive of the sufficiency of plea A-1 as against any objection here urged.
It is suggested in argument, though no assignment of demurrer takes the point, that the plea is objectionable for duplicity, including other charges of negligent conduct.
"Under our system of pleading, the fact that a plea is double is not an available defect." Moore v. Heineke, 24 So. 374,119 Ala. 627.
In the respect indicated, we have held the plea sufficient.
Counsel argue as to the insufficiency of the averments in respect to the additional charge of negligence embraced in the other language of the plea. But a consideration of this aspect of the plea may be pretermitted. Having held one defense therein set up sufficiently averred, even if the other is insufficiently averred, this is not a defect which can be reached by demurrer.
"A motion to strike out the imperfect part, or a special explanatory charge, is the proper recourse in such a case." Bolling v. McKenzie, 7 So. 658, 89 Ala. 470; Corpening v. Worthington, 12 So. 426, 99 Ala. 541.
The suggestion that the added averments did not conclude expressly that the negligence there charged proximately contributed to the injuries of plaintiff's intestate is without merit. Plea 12, all the allegations of which were adopted as a part of this plea, did contain the averment that the negligence charged to plaintiff's intestate proximately contributed to her injuries. The averments of facts here considered are to be treated as added to plea 12, and no occasion arose for the pleader to reiterate the averment as to proximate cause.
By the ruling sustaining the demurrer to this plea, the defendant was deprived of the benefit of this defense, and it may be added also that there was a tendency of the evidence in support thereof. This was error for which the judgment must be reversed.
In view of another trial, one question of evidence needs consideration. Plaintiff was permitted to show by the driver of the team, over defendant's objection, that this particular team had run away before with this same driver. It is insisted this matter related to collateral facts and inadmissible under the general rule. Mayor, etc., B'ham. v. Starr, 20 So. 424,112 Ala. 98; Foley v. Pioneer Mining Co., 40 So. 273, 144 Ala. 178; Southern Ry. Co. v. Lefan, 70 So. 249, 195 Ala. 295. But we are inclined to the view that this evidence comes within the well-recognized exception to the general rule where knowledge or intent of the party is material. 1 Greenleaf on Ev. (16th Ed.) App. II, § 53; Mayor, etc., v. Starr, supra.
The case for the plaintiff rested upon the negligent conduct of the driver, and his knowledge and experience as to a former occasion of like character was proper to be considered upon the general charge of negligence contained in one of the counts.
Some of the objections to argument of plaintiff's counsel present serious questions, but a consideration of these rulings is unnecessary, in view of another trial of the cause, and it may be assumed these questions will not again arise.
For the error indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur. *Page 308