
    Birmingham Railway & Electric Co. v. The City Stable Co.
    
      Action for Damages for Injury to Property.
    
    1. Name of negligent agent need not he averred. — There is no rule of pleading that requires a complaint in an action against a railroad company to recover damages for injuries to one not an employe, to state the name of the person whose negligence is alleged to have caused the injury.
    2. Animals in custody of person; what rule applies. — Where a horse is injured on a railroad track while in the custody of a person, the same principle applies with respect to the duty owing by the railroad company, as applies in the case of a human being on the track.
    3. Trespasser; one merely crossing trade is not. — It is not negligence in itself for one to cross over a railroad track wherever he has occasion to do so, whether in the open country or within the limits of a town or village; and one who with due care and caution, goes on the track for the purpose of crossing, is not a trespasser, and the railroad company owes him the duty it owes to one who has the right to be on the track.
    4. Duty to persons crossing. — If the person driving a horse had a right to drive on the track of a street railway company for the purpose of crossing at the particular place, it became the duty of those in charge of an electric car on the track, not only to keep a lookout to observe him, but also to run the car at such rate of speed on approaching the place, and to retain such control over it, as to be able to bring it to a full stop before striking the horse.
    5. Charge must conform to issue. — A charge predicating a right to a verdict for defendant, on an alleged act of contributory negligence not covered by the pleas, is properly refused.
    6. Charge .assuming facts to he inferred. — A charge: “If the jury believe from the evidence that an ordinarily prudent person would not have tried to pull the horse forward, but backward off the track, and they further believe from the evidence that the driver tried to pull the horse forward, then your verdict must be for the defendant,” is properly refused, in that it assumes that to pull the horse backward would hayo been successful in averting the injury.
    Appeal from Birmingham City Court.
    Tried before Hon. Wm, W. Wilkerson.
    The case made by the pleadings and proof is sufficiently stated in the opinion. The defendant excepted to the following portions of the court’s oral charge: (a.) “The duty of a motorman on an electric car varies to some extent according to the locality in which he is running. He may be permitted to run at one rate of speed in the open country Avhere there are no crossings, that he Avould not be permitted to run Avhere he Avould be likely to encounter people and vehicles upon the track.” (b.) “It xvould be proper for him to run the car at one speed in one part of the toAvn and not to run at such rate of speed at another part of the town where it was more densely populated.” (c.) “In determining whether he was guilty of negligence in this case, gentlemen of the jury, you Avill consider the locality where he Avas running. Whether or not there was danger of his striking a vehicle or person upon the track at any crossing, and how fast he was running; how far his light would enable him to observe dangers in front of him; within what distance he could stop the car; and from all the circumstances Avhich the evidence discloses to you, surrounding this matter, you will determine whether or not he was guilty of negligence in running the car.” (d.) “It is the duty of the motorman when lie is running where he rimy come into collision with some person or Ambicie at a crossing, at some place where the person or vehicle has a riglit»to be, to keep his car under such control as that he may stop it in time to avoid injury if he had Avith proper diligence discovered the danger. While he may run Avith groa‘■or or less speed according to the locality in which he is running, it is his duty to at least retain control over his car; and that control must be such that he may, in case he encounters danger and discovers it, by doing those things Avhich will control his car, so regulate his speed ths t he will come to a full stop before he does the inj ury to the person or vehicle that may be in front of him; or give that person or vehicle an opportunity to get out of the Avay. He is. not bound to anticipate that any body will do anything in getting upon the track which they ought not to do, but he is bound to knoAV that other people have a right upon the track besides himself and in running the trains must so run them that he may discover danger, if he can discover it by the exercise of proper diligence, so as to stop the car and avert the injury which might happen to a person in his way upon the track. If the night is dark and he can not see further ahead than his light, of course it is his duty to take that fact into consideration in determining the speed of his car. If he ra o not see but a little way ahead, he must run more slowly than if he could see a long way ahead.” (e.) “If he fails in any such duty lie is guilty of negligence; and if injury results to any person upon the tracks or property, which is where it has a right to be, then the company for whom the motorman is acting is liable for the result.” The defendant requested the court to give to the jury the following written charges: The first and second changes were the general affirmative charge. The others were as follows: (3.) “If you believe from the evidence that Pritchard was familiar with the crossing fit Avenue F. and 33d street, and that he (Pritchard) knew that there was a place to cross which was safer than the crossing at Avenue F. and 33d street, and that he (Pritchard) failed to make use of such safe and more convenient crossing; then I charge you that Pritchard was guilty of negligence in crossing at Avenue F. and 33d street, and your verdict must be for the defendant, if you further believe that such crossing at Avenue F and 33d street contributed proximately to plaintiff’s injury and damages.” (•1.) “If the jury believe from the evidence that there wore two ways by which the driver could have driven across Avenue F. at or near the place where he desired to cross the same, and they further believe from the evidence that one of said ways Avas a safe Avay to cross and the other was a dangerous way, and they further believe from the evidence that the driver chose the dangerous way, then their verdict must be for the defendant.” (5.) “If the jury believe from the evidence that there Avere two Avays by which the driver could have driven cross Avenue F. at the place Avliere be desired to cross the same, and they further believe from the evidence that one of them was a safer place to cross than the other, and they further believe from the evidence that tb¡o difiver chose the less safe AA’ay of the íavo and such act on his part contributed proximately to the plaintiff’s damage, tlien tlieir verdict must he for the defendant.” (6.) “If the jury believe from the evidence that an ordinarily prudent person would not have tried to pull the horse forward but backward off the track, and they further believe from the evidence that the driver tried to pull the horse forward, then your verdict must be for the defendant.” (7.) “I charge you that the defendant was not guilty of negligence in running its car at the rate of from 12 to 25 miles an hour if you believe from the evidence that said car was run at such rate.” (8.) “The defendant requests the court to instruct the jury as follows: Gentlemen of the jury, I charge you that if you believe the evidence you must find a verdict for the defendant.” (9.) “If the jury believe from the evidence that the place where the driver attempted to cross the defendant’s track was not a public or private crossing then their verdict must be for the defendant.”
    Walker, Porter & Walker, for appellant.
    The name of the negligent agent should have been shown, or that it was unknown. — L. & N. R. R. Co. v. Bould'm■, 110 Ala. 185; Bo. Ry. Go. v. Cunningham, 20 So. 639. The court erred in submitting to the jury whether it was negligence to run the car at the rate of speed shown by the evidence under the circumstances. The rule of law requiring that cars shall be run at night at such rate of si>eed that the car can be stopped in the distance an obstruction may be seen by the aid of the head-light, applies to live stock only, and not to persons. As the horse Avas in charge of a man, the rule as to persons applies, and not as to stock. The driver, on the undisputed evidence, was guilty of contributory negligence in selecting an unsafe in preference to a safe crossing. — M. cG B. R. Go. r. Halbvrn, 84 Ala. 133; L. cG N. R. Go. v. Orr, 91 Ala. 548; R. R. Go. v. Wattler, 91 Ala. 435; R. R. Co. v. Graham, 94 Ala. 545.
    Cabinesss & Weakley, contra.
    
    It Avas not necessary to aArer the name of the motorman whose negligence caused the accident. — Woodard Iron Go. v. Herndon, 21 So. 430; McNamara v. Logan, 100 Ala. 187. By the uncontradicted evidence the motorman Avas guilty of negligence in running the car down grade and around a curve at such a rate of speed as that it Avas impossible to stop the car after lie could discover the danger of the party on or near the track. — Oxford Lake Line v. Stednuui, 101 Ala. 376; Central R. It. cG Bank Go. v. Ingram, 98 Ala. 395; L. é A. It. R. Go. v. Well), 97 Ala. 308. There was no error in the oral instructions excepted to. — 16 Am. & Eng. Eneye. of Law, pp. 398 to 401; L. & N. R. R. Go. v. Well), 97 Ala. 308 and authorities cited.
   BRICKELL, C. J.

Appellee sued to recover damages for injuries to a horse and buggy owned by it, caused by their being struck by an electric car operated by appellant while they were in the care of one Pritchard who had hired them. The demurrer to the complaint on the ground that it failed to aver the name of the motorman in charge of the car ivas properly overruled. There is no rule of pleading that requires a complaint in an action against a railroad company to recover damages fur 'injuries to one not an employe, to state the name of the person whose negligence is alleged to have caused the injury. It lias been held that a complaint by an employe under section 1749, subdiv. 2, .Code 1896, counting on the negligence of any person in the service of the employer who has any superintendence intrusted to him, or xinder subdiv. 5 of the same section, counting on ihe negligence of any person in the service of the employer in charge or control of any signal, point, locomotive, etc., must allege the name of such person, or that his name is unknoivn to plaintiff. — Southern Ry. Co. v. Cunningham, 112 Ala. 496; L. & N. R. R. Co. v. Bouldin, 110 Ala. 185. But in McNamara v. Logan, 100 Ala 187, followed by and adhered to in Woodward Iron Co. v. Herndon, 114 Ala. 215, which overruled a conflicting decision in L. & N. R. R. Co. v. Bouldin, supra, it was held that the above rule did not apply to a complaint under subdivision 1 of this section, counting on a defect in the ways, works, machinery, etc., for the reason that the injured employe could not be supposed to know the name of the person charged with the duty of keeping the ways, works and machinery in proper condition. For a like reason the rule is inapplicable when the injury is sustained by one who is not an employe of the defendant.

The accident occurred at the intersection of Thirty-third street and Avenue F., along which avenue the electric railway runs from Birmingham to Avondale. Thirty-third street is one block beyond and east of the corporate limits of Birmingham, and Avenue F. is a continuation of Avenue F. in Birmingham. Defendant had a station at this point, and there were seven or eight houses on the east side of Thirty-third street south of the railroad, and five or six on the south side of Avenue F., in the immediate vicinity of the place where the accident occurred, but there were no houses on the north side of the avenue, except a store about half a block from the place. On the north side of the track there had been a wash-out which left a hole extending from the track to the north side of the avenue from three to four feet in depth, sloping gradually from the track, but leaving on the north side a perpendicular embankment three or four feet in height over which it was impracticable to drive ahorse. It Avas practicable, however, to drive across the track into the wash-oul, and to emerge therefrom by driving along the avenue parallel Avith the track a short distance. Pritchard was driving at night north along Thirty-third street, and attempted to cross the track at this place. While on the track the horse stopped and refused to cross over. Pritchard alighted and attempted for two or three minutes before the car appeared to pull the horse across the track but failed, and the car approaching from Birmingham struck the horse and knocked it from the track. The testimony showed Avithout conflict that Avhen the car reached TAventy-seventh street going east, the motorman turned on the full current and let the car run doAArn grade at full speed, Arariously estimated by the AAdtnesses at from 12 to 25 miles an hour. Just before reaching Thirty-third street the track makes a short curve, and when the car turned the curve it Avas running at so great a speed that it Avas impossible for .the motorman to stop it within the distance at AA’liich the horse could be seen, about seventy feet, or Avithin the distance its head-light illuminated the track.

The horse being in the custody of Pritchard, the same principles must apply Avith respect to the duty OAving by defendant, as applies in the case of a human being-on a railroad track. If his act in driving on the track Avas that of a trespasser, those in charge of the car OAved him no duty except to exercise due care to avoid the injury after the presence of the horse on the track became known to them. But if he had a right to drive on the track for the purpose of crossing it at this particular place, then it became their duty not only to keep a lookout to observe him, but also to run the car at such a rate of speed on approaching the place, and to retain such control over it, as to be able to bring it to a full stop before striking the horse.- — Glass v. M. & C. R. Co., 94 Ala. 581; Nave v. A. G. S. R. Co., 96 Ala. 264; Central R. Co. v. Vaughn, 93 Ala. 209. As was stated in Glass v. M. & C. R. Co., supra, it is not negligence in itself for one to cross over a, railroad track wherever he may have occasion to do so, whether in the open country or Avithin the limits of a toAvn or village, and one who, for the purpose of crossing the track, goes upon it with care and caution and with all the assurance his senses properly exercised can give him, that it is safe to do so, may recover if he is injured from some cause against which he could not guard. He is not, under such circumstances, a trespasser, and the railroad company OAves to him, while in the act of crossing, the samfe duty it owes to one Avho has a right to be on the track. This is particularly true under the facts of this case. Avenue F. at the place of the accident, being one block from the city limits and having houses built on each side thereof, was undoubtedly a public thoroughfare. The public had the right to use both si les of the street and to cross the track at any suitable point for the purpose of getting from one side to the other, and it Avas the duty of those in charge of the cars of defendant to retain such control over the cars on approaching this place as to be able to bring them to a full stop before striking one in the act of crossing the track. This duty was not suspended by the mere fact that a wash-out had occurred on the north side of the trade. It does not appear hoAV long the wash-out had existed. It may have been of recent origin, in which case the defendant was certainly not relieved from the duty of exercising the same care to avoid injuring persons driving along Thirty-third street and crossing the trade that it OAved before the wash-out occurred. We are of the opinion the uncontradicted evidence shows that defendant Avas guilty of negligence in running the car at so great a rate of speed as to be unable to avoid injury to one in the act of crossing the track at this point. Whether Pritchard was guilty of negligence, in the particulars alleged in the special pleas, which contributed proximately to the injury, was properly submitted to the jury. The only particulars in which he is charged with such contributory negligence are, first, in driving upon the track immediately in front of the car; second, in allowing the horse and buggy to remain on the track on a curve; third, in allowing the horse and buggy to stand on the track at a point where they could not be seen by the motorman until it was too late to avoid the injury. The evidence does not sustain the plea in the first particular, since it shows that Pritchard was on the track trying to pull the horse across two» or three minutes before the car came within sight. Assuming that his failing to attempt to back the horse off the track was equivalent to permitting it to remain on the track, as charged in the plea, it was for the jury to determine, under all the circumstances, whether this failure contributed to the injury. In view of these averments of the plea of contributory negligence, charges 3, 4 and 5, requested by appellant, were properly refused because, besides assuming that Pritchard had knowledge of a safer crossing, they predicate defendant’s right to a verdict upon his negligence in selecting the more dangerous of two crossing places, which act of contributory negligence is not charged in the pleas. Charge 6 was erroneous and properly refused because it assumes that an effort to back the horse off the track would have been successful, and that the failure to make such effort contributed to the injury. The other charges requested by appellant were properly refused for reasons already stated. We discover no error prejudicial to appellant in those parts of the court’s oral charge to which exceptions were reserved. The judgment of the court below is affirmed.  