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upon the defendants filed the pleas of the general issue and of payment, and by special plea sought to set off a demand due from the plaintiff to the defendants. The trial was had upon issue joined upon these pleas. The evidence for the plaintiff tended to show that on January 4, 1897, he entered into a contract with the defendants, Hartsell & Son, to clerk for them in their store for the remainder of the year 1897 at a stipulated price of $450 for the year, and entered upon his duties as such clerk; that he was paid up to the time of his discharge the proportionate amount of the salary due him, and that the books of the defendants show that he had been credited by services rendered equal to such proportionate amount up to July 6, 1897; that on July 6, 1897, the plaintiff was discharged by the appellants, against his protest, and without any reason being assigned therefor. The plaintiff, as a witness in his own behalf, testified that he faithfully discharged the duties imposed upon him as clerk, and did all things which he was told to do by the defendants while in their employ; that after his discharge he sought employment of like kind in the town where the defendants' business was located, but was unable to find such employment. The plaintiff further testified that during the year 1899 the defendants sued him in a justice of the peace court of Morgan county for an alleged balance due them from plaintiff upon an account, which was the account offered as a set-off in this action. The plaintiff, as a witness, was then asked to identify the papers appertaining and belonging to said suit against him in the justice of the peace court by the defendants, it having been shown that the justice of the peace was dead. The defendants objected to this proof, on the ground that it was immaterial, irrelevant, and duly excepted to the court's overruling this objection. Upon the plaintiff identifying said papers, the plaintiff offered in evidence the summons and complaint in said suit brought by the defendants in the justice of the peace court against the plaintiff. The defendants objected to the introduction of said summons and complaint. The court overruled their objection, stating that these papers were admitted for the purpose of showing how much defendants claimed of plaintiff. The defendants duly excepted to this ruling. The plaintiff then offered in evidence the pleas filed by him in said cause in the justice of the peace court. The defendants objected to the introduction of these pleas, and duly excepted to the court's overruling their objection. The plaintiff then offered in evidence an itemized statement of the account which had been furnished him by the defendants upon his demand before the trial of said cause in the justice of the peace court. The defendants objected to the introduction of this account on the ground that the same was immaterial and irrelevant. The bill of exceptions recites that the

court permitted said account to go to the jury not as evidence of the correctness of items charged and credits, but simply as a memorandum in connection with witness' testimony, and as evidence of the amount claimed against the plaintiff by the defendants. To this ruling the defendants duly excepted. The evidence for the defendants tended to show that at the time of the employment of the plaintiff he was employed for an indefinite period by the month at the rate of $35 per month, and that he was discharged for inefficiency and inattention to his duties. During the cross-examination of one of the witnesses for the defendants, and after he had testified that he was a clerk for the defendants, said witness was asked by the plaintiff "if it was not the custom of J. C. Hartsell & Son to employ their clerks by the year, and not by the month." The defendants objected to this question, because it was immaterial and irrelevant, and because the contract could not be established or shown by custom. The court overruled the objection, permitted the question to be asked, and to this ruling the defendants duly excepted. The witness answered that this was the custom of the defendants during the year 1897. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charge: (1) "I charge you, gentlemen of the jury, that if you believe from the evidence that plaintiff and defendants made a contract whereby plaintiff was to work for defendants for the year 1897 at the price of four hundred and fifty dollars ($450.00), and that plaintiff entered on the performance of the contract, and without just excuse or provocation the defendants discharged plaintiff before the expiration of the term expired, and plaintiff tried to get work in the community of Hartsell of a similar kind to that he was employed by defendants to do and failed, then the plaintiff is entitled to recover whatever difference there was between the amount paid to plaintiff or he was chargeable with and the four hundred and fifty dollars agreed to be paid." The defendants duly excepted to the giving of this charge, and also duly excepted to the court's refusal to give the following charge, requested by it: "Unless the contract was for the entire year, the defendants had the right to discharge the plaintiff at any time during the year without any fault on his part." There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

D. W. Speake and A. L. Brown, for appellants. S. T. Wert, for appellee.

MCCLELLAN, C. J. Plaintiff testified that defendants employed him for the year 1897 at a salary of $450 for the year. The defendant with whom the agreement was made

testified that he employed plaintiff for an indefinite time at $35 per month. On this state of case it was manifest error to allow plaintiff to prove that it was defendants' custom to employ their clerks by the year, and that they so employed other clerks during the year 1897. The terms of express contracts cannot be proved in this way. Wilson v. Smith, 111 Ala. 170, 20 South. 134; Kuhl v. Long, 102 Ala. 563, 15 South. 267; Garrett v. Trabue, 82 Ala. 227, 3 South. 149; Haas v. Hudmon, 83 Ala. 174, 176, 3 South. 302. In view of the interposition of the plea of set-off by defendants it was not error to receive evidence of the amount claimed by them in the suit against Masterson before a justice of the peace, and the account furnished Masterson in that suit was also properly received; but Masterson's plea to that action should not have been admitted in evidence for him in this. This action was begun on August 11, 1897. The first count claims for work and labor done between January 1 and December 31, 1897. This is an apparent anachronism, which it would be well to remedy. The second count is not open to the objection taken by the demurrer to it. It is to be taken as upon an open account. The third count should be amended so as to show more certainly that the claim is for that part of the services which plaintiff was prevented from performing by his wrongful discharge. Of course, on the averments of this count interest would be recoverable only from December 31, 1897. Charge 1 given for plaintiff is not open to the objection made in argument for appellants. There is no evidence that plaintiff received anything for his services from the time of his discharge to the expiration of the alleged term of his contract with defendants. According to plaintiff's averment and evidence, the contract was not for "the entire year," but from January 4th to December 31st. The charge asked by defendants might, therefore, have misled or confused the jury. Moreover, according to the theory of the defense, the contract was by the month, and plaintiff could not, it would seem, have been rightfully discharged without fault on his part "at any time during the year," but only at the end of a month. Moss v. Furnace Co., 93 Ala. 269, 9 South. 188, 30 Am. St. Rep. 55. Reversed and remanded.

BIRMINGHAM RY. & ELECTRIC CO. v. BAKER.

(Supreme Court of Alabama. Jan. 15, 1902.) STREET RAILROADS-NEGLIGENCE-CROSSING ACCIDENT-COLLISION WITH HOSE CARTPLEADING COMPLAINT - ALLEGATIONS OF NEGLIGENCE SUFFICIENCY - JURY QUESTION-CONTRIBUTORY NEGLIGENCE.

1. An allegation in a complaint in a street car crossing accident case that plaintiff suffered the alleged injuries as the proximate consequence of the negligence of defendant, through its employés, in the management and control

of its cars, is a sufficient allegation of negligence.

2. An allegation in a complaint in a street car crossing accident case that defendant recklessly and wantonly or intentionally caused the alleged injuries, in that defendant, through its servants and agents, recklessly and wantonly or intentionally caused such collision, is a sufficient allegation that the injuries were wantonly, willfully, or intentionally inflicted.

3. Where the concurring negligence of the driver of a hose cart and employés in charge of a street car results in a collision, the negligence of the driver cannot be imputed to a fireman riding on the truck, but having nothing to do with the driving, who is injured in the collision, and it will not preclude him from recovering from the street car company.

4. A hose cart, going about as fast as the horses could run, and with the gong sounding, collided at a street crossing with a street car; and plaintiff, who was a fireman on the cart, was injured. Plaintiff's witnesses testified that the car had stopped before attempting to cross the street on which the cart was approaching, and that the motorman started his car without warning when the cart was only 18 or 20 feet from the intersection of the streets, and made no attempt thereafter to stop the car. One witness testified that the motorman was looking ahead when he started the car, and another that he was looking back through the car. Defendant's witnesses testified that the car did not start after it had stopped, and that the cart ran into it. Held, that the question whether the motorman saw or heard the approaching cart when he started the car, if he did start it, and willfully or wantonly, or with reckless indifference to consequences, failed to exercise proper care to prevent the collision, was for the jury.

5. The question whether a fireman, who has no time to put on his coat before responding to a fire alarm, and who is allowed to do so while on the cart on the way to the fire. is negligent in so doing, is a question for the jury, in an action for injuries received in a collision with a street car, in which the defendant contends that the fireman's negligence in attempting to put on his coat on the moving cart contributed to the injury.

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by James B. Baker against the Birmingham Railway & Electric Company. From a judgment in favor of the plaintiff, defendant appeals. Affirmed.

This action was brought by the appellee against the appellant, to recover damages for personal injuries sustained by the plaintiff, by reason of a collision between an electric car owned and operated by the defendant and a hose cart of the fire department, upon which cart plaintiff was riding at the time of the accident.

The complaint contained two counts, which were in words and figures as follows:

"Plaintiff claims of defendant ten thousand dollars as damages for that heretofore, to wit, on January 10, 1898, plaintiff was upon one of the public streets of the city of Birmingham, within the corporate limits of said city, to wit, upon First avenue, and at its intersection of Twentieth street, and was upon a vehicle being used by the fire department of said city, to wit, a hose wagon, plaintiff being at said time engaged in or about the business of said fire department,

to wit, attending an alarm of fire; that at said time and place a car being operated by defendant over and along said Twentieth street, and across said First avenue, by means of electricity, collided with said vehicle and, as a proximate consequence thereof, plaintiff's shoulder blade was broken, his shoulder dislocated, his knee injured and various parts of his body were cut, bruised and otherwise injured, and plaintiff suffered great mental and physical pain, and was crippled and disfigured, and was rendered unable for a long time to work and earn money, and was rendered permanently less able to work and earn money, and plaintiff was rendered unfit to pursue his accustomed avocation, and was put to great inconvenience and trouble and expense for medicine, medical attention, care and nursing in his efforts to heal and cure his said wounds and injuries. Plaintiff alleges that said car collided with said vehicle, and plaintiff suffered said wounds and injuries, as a proximate consequence of the negligence of defendant, through its employé or employés, in the management or control of said car."

"Second Count. Plaintiff refers to, and adopts as a part of this count, all the words and figures of the first count from the beginning thereof to and including the words, *heal and cure his said wounds and injuries,' where they first occur together in said count, and plaintiff further avers that defendant recklessly and wantonly or intentionally caused said injuries and damage to plaintiff, in that defendant through its servants or agents recklessly and wantonly or intentionally caused said collision. All to plaintiff's damage, ten thousand dollars, wherefore he sues."

To the first count the defendant demurred upon the following grounds: "(1) For that the allegations of negligence therein are vague, indefinite and uncertain. (2) For that it is not alleged in what manner the defendant was negligent. (3) For that it is not alleged that the injuries were inflicted by the negligence of the defendant."

To the second count the defendant demurred upon the following grounds: "For that the same fails to show any facts constituting recklessness, wantonness, or intentional misconduct. (2) For that the same fails to allege that the injuries to plaintiff were recklessly, wantonly or intentionally inflicted." These demurrers were overruled. Thereupon the defendant filed several pleas of the general issue, and the following special pleas:

"(4) The defendant for further answer to the said complaint says that the plaintiff at the time he received his alleged injuries was riding in a vehicle that was being driven by another person, and the defendant says that plaintiff's injuries were caused by the negligence of the driver of such vehicle.

"(5) The defendant for further answer to the said complaint says that the plaintiff

at the time he received his alleged injuries was riding in a vehicle that was being driven by another person, and the defendant says that the driver of such vehicle was guilty of negligence in this, that he negligently drove said vehicle into and against the defendant's car, and such negligence of the driver of said vehicle approximately contributed to and helped to cause the injuries alleged to have been received by the plaintiff.

"(6) The defendant for further answer to the first count of the complaint says that the plaintiff at the time he received his alleged injuries was riding in a vehicle that was being driven by another person, who at the time was engaged in a common enterprise, and the defendant says that plaintiff's alleged injuries were caused by the driver of said vehicle.

"(7) The defendant for further answer to the first count of the complaint says that the plaintiff at the time he received his alleged injuries was riding in a vehicle that was being driven by another person, and the defendant says that the driver of such vehicle was guilty of negligence, in this, that he negligently drove said vehicle in and against the defendant's car, and such negligence of the driver of said vehicle proximately contributed to and helped to cause the injuries alleged to have been received by the plaintiff.

"(8) The defendant for further answer to the first count of the complaint says that the plaintiff was himself guilty of negligence which proximately contributed to his alleged injuries, and such contributory negligence consisted in the negligent manner in which the vehicle the plaintiff was at the time riding was driven into and against the defendant's car.

"(9) The defendant for further answer to the first count of the complaint says that the plaintiff was himself guilty of negligence which proximately contributed to his alleged injuries, and such contributory negligence consisted in his negligently remaining on the vehicle, in or on which he was at the time riding.

"(10) For further answer to the first count of the complaint, the defendant says that the plaintiff was himself guilty of negligence which proximately contributed to his alleged injuries, and such contributory negligence consisted in this, that he was assistant driver on said hose cart, and it was his duty while riding upon said hose cart or wagon to look out for and discover obstructions in the way of the progress of said wagon, and to call the driver's attention thereto; and the defendant avers that the plaintiff negligently failed to look out for the defendant's said car, which was an obstruction in the way of the progress of said wagon, and negligently failed to call the attention of the driver of said wagon to such obstruction.

"(11) For a further answer to the first count of the complaint, the defendant avers that the plaintiff was the assistant driver at

the time on said hose cart, or wagon, and, as such, it was his duty to ride upon the wagon and look out for obstructions in the way of its progress, and to call the driver's attention to such obstructions. And the defendant further avers that the driver of said wagon and plaintiff were at the time engaged in the joint enterprise of going to a fire in response to a fire call, the one as driver, as aforesaid, and the other as assistant driver, and with duties as aforesaid; and the defendant avers that the driver of said wagon was guilty of negligence in this, that he negligently drove said wagon into and against the defendant's car, and such negligence of the driver of said wagon proximately contributed to the injuries alleged to have been received by the plaintiff."

These demurrers were sustained, and the cause was tried upon issue joined on the other pleas.

The facts necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) I charge you that you cannot award punitive damages in this case. (2) If you believe from the evidence that just before and at the time of the collision between the wagon and the car, the wagon was being drawn by two horses that were running as fast as they could run, that at such time the plaintiff was standing on his feet on the wagon, putting on his coat, that it is negligence for one, while riding upon a wagon being drawn at such speed, to stand on his feet on such a rapidly running wagon and put on his coat, that such negligence of plaintiff proximately contributed to his injuries or to his falling off of the wagon, your verdict must be for the defendant. (3) I charge you, gentlemen of the jury, that it is negligence for one while riding upon a wagon, running twenty-five miles an hour, to stand upon his feet, and while so standing be in the act of putting on his coat. (4) If you believe the evidence you cannot find that the motorman, Curtis, intentionally injured the plaintiff. (5) If you be lieve the evidence you cannot find that the motorman, Curtis, wantonly injured the plaintiff. (6) If you believe the evidence you must find for the defendant. (7) If you be lieve the evidence you cannot find for the plaintiff under the first count of the complaint. (8) If you believe the evidence you cannot find for the plaintiff under the second count of the complaint. (9) If you be lieve from the evidence that just before and at the time of the collision between the wagon and the car the plaintiff was standing on his feet on the wagon, putting on his coat, you must find for the defendant. (10) If you believe from the evidence that just before and at the time of the collision be

tween the wagon and the car the plaintiff was standing on his feet, putting on his coat, you cannot find for the plaintiff on the first count of the complaint."

There were verdict and judgment for the plaintiff assessing his damages at $1,175. Defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Walker, Tillman, Campbell & Walker, for appellant. Bowman & Harsh, for appellee.

HARALSON, J. 1. Counts 1 and 2 of the complaint, the one in its averments of simple negligence, and the other of wanton, willful and intentional injury, have too often been held sufficient to admit of further consideration. Railroad Co. v. Robinson (Ala.) 28 South. 28; Railroad Co. v. Brown, 121 Ala. 221, 25 South. 609; Same v. Orr, 121 Ala. 489, 26 South. 35; Railroad Co. v. Burgess, 119 Ala. 557, 25 South. 251, 72 Am. St. Rep. 943; Armstrong v. Railway Co., 123 Ala. 233, 26 South. 349; Railway Co. v. Guyton, 122 Ala. 231, 25 South. 34.

2. Demurrers were interposed to pleas 4, 5, 6, 7 and 11 and sustained. These pleas, in substance, attempt to impute to the plaintiff, who was a fireman riding on the hose cart, the negligence of the driver of the cart. Two of them, the sixth and eleventh, not denying the allegations of the complaint, that the plaintiff was, at the time he was riding on said cart, engaged in or about the business of the fire department, in attending an alarm of fire, allege that the plaintiff and the driver of the cart were engaged in a joint enterprise in going to a fire, averring in the one, that the plaintiff's injuries were caused by the driver of the vehicle, and in the other, that the driver of said wagon was guilty of negligence in driving his wagon into and against the defendant's car, allege that thereby the driver proximately contributed to the injuries received by the plaintiff.

The principle here invoked is without merit as applied to this case. It has undergone elaborate discussion in the courts, and the doctrine once maintained in England is now repudiated generally in that country and in America. In the case of Bailey v. Jourdan, 18 App. Div. 387, 46 N. Y. Supp. 399, Bailey was a policeman of Brooklyn, and he and another policeman, Morgan, were sent by the police sergeant, with an ambulance, to bring to the station house a prisoner. Morgan was detailed to drive the ambulance, and sat on the driver's seat and did the driving, while Bailey, the deceased, sat inside the vehicle. A dummy engine struck the ambulance and Bailey was killed in the collision. The contention of defendant was, that Bailey was negligent in failing to watch and wait for the coming train, and that Morgan, the driver, was negligent, and that his negligence should be imputed

to Bailey. The testimony did not disclose any negligence on the part of the latter, personally. The court said, that it was the duty of the driver and not Bailey, to look out for coming trains; that the driver had exclusive charge of the wagon, and it made no difference that Bailey and Morgan were sent out by the sergeant in the common employment of bringing in a prisoner; that Bailey had nothing to do with the management of the wagon; that this was the duty of Morgan, with which Bailey had no connection and over which he had no control, and hence the negligence of the driver could not be imputed to him. To the same effect are cited the cases of McCormack v. Railroad Co., 18 App. Div. 333, 46 N. Y. Supp. 230; Galvin v. Mayor, etc., 112 N. Y. 223, 19 N. E. 675; Seaman v. Koehler, 122 N. Y. 646, 25 N. E. 353. The distinction is clearly drawn in Bailey's Case, supra, between cases of the kind, and others, where parties are engaged as comrades in a joint enterprise, with no one in absolute, individual control of the management of the vehicle, but where each, in a measure, is in the management and control of it.

In Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652, Justice Field discussed the principle, and reviewed the authorities, saying that "the identification of the passenger with the negligent driver of the owner, without his co-operation or encouragement, is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver, or the person managing it, is his servant. Neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world."

This court in Land Co: v. Mingea, 89 Ala. 521, 7 South. 666, gave very thorough discussion of the subject, with citation of the authorities from many of the states, to sustain the view expressed in the foregoing cases. That was a case where the plaintiff, as an employé of the fire department of Birmingham, while riding in a hose cart or reel, in regular pursuit of his duties as a fireman, was injured by the capsizing of the vehicle, in consequence of the negligent condition of defendant's street railway over which it passed, the vehicle being driven by one Mullins, also a fireman, and under his exclusive control. The court charged the jury, that the negligence of the driver of the carriage could not be imputed to the plaintiff, and could not be a bar to his recovery, provided he was guilty of no negligence. Many charges requested by defendant and refused, sought to impute to plaintiff the alleged negligence of the driver, although the former had no control over the management of the hose cart or the horses attached to it. court, as a result of the discussion, announced: "The rule must be regarded as now

The

fully settled, both in England and America, and certainly in this state, that the negligence of the driver of a vehicle cannot be imputed to a passenger therein, when the passenger is free from personal negligence, and has no control over the driver, and has not been guilty of any want of care in his selection." It was insisted by the defendant in that case, as here, that the plaintiff and the driver, were in the employment of the city of Birmingham as firemen, and were, at the time of the injury, in the employment of the city, engaged in a joint enterprise, and for this reason, the contributory negligence of the one, should be imputed to the other. But this insistence was repudiated by the court, in the expression, "Where several per sons are engaged in a joint enterprise, so that each is mutually responsible for the acts of the other, and no one has the exclusive control of the vehicle or vessel in which they are traveling, the one in management may be regarded as the agent of the others; and in such cases, the rule we have first above announced, would have no application, that rule being based on the fact, that there is no relation of principal and agent between the driver of a vehicle and one who rides with him, without authority to control him in management." Vormus v. Railroad Co., 97 Ala. 331, 12 South. 111; Railroad Co. v. Mothershed, 121 Ala. 658, 26 South. 10.

McKinney, who was the driver, testified that he was assistant foreman of the North Side fire department, and was the driver of hose wagon No. 2; that the plaintiff was working with the same fire department; that he assisted in driving; that when witness was there, he, himself, was in charge and did the driving; that plaintiff had nothing to do with the horses and wagon or any control over them, except to hold them; that witness did the driving and Baker had nothing to do with it; that witness was driving the night of the injury, and Baker was on the wagon. In response to the question, "Did he have anything to do, directly or indirectly with the reins or the driving of that wagon or horses that night?" he replied, "Nothing whatever;" that he "had nothing to do with controlling those horses and handling those lines or driving that wagon that night;" he was not sitting on the seat with witness, but was about two feet back of him on the ladders of the hose wagon.

Walton and plaintiff testified substantially to the same facts, and there is no conflict in the evidence as to them.

The demurrers to the pleas mentioned were properly sustained.

3. It has been held in operating a railroad engine that "an intent to injure on the part of defendant's employés, is not essential to liability, notwithstanding contributory negli gence; it is enough, if they exhibit such wantonness and recklessness as to probable consequences, as implies a willingness to in

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