holding that a city could not be held vicariously liable for the act of a magistrate who was immune from liability
How later courts described this case
- holding that a city could not be held vicariously liable for the act of a magistrate who was immune from liability
- discussed in note 2 infra; affirming a judgment based on a verdict against a principal on a respondeat superior theory based on evidence implicating the actions of an agent not named as a defendant in the complaint
Written by the judges who cited it.
Distinguished
Distinguished by Gilmore v. Shell Oil Co., 613 So. 2d 1272 (1993)
We distinguish this rule from the rule established in Maddox
The opinion
On Rehearing.
PER CURIAM.
The question presented ■ must not be confused with the question of contributory negligence. The idea of contributory negligence presupposes negligence of the defendant, and contributory negligence, though it may be a contributing or concurring cause, can never be an efficient intervening cause to break the chain of causation flowing from the defendant’s negligence and insulate the same. Contributory negligence is a special affirmative defense which must be specially pleaded and if not pleaded is waived. Southern Railway Company v. Shelton, Adm’r, 136 Ala. 191 , 34 So. 194 ; Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 412 , 11 So. 262 .
The fact and legal result of an efficient intervening cause, which breaks the chain of causation flowing from defendant's negligence, cannot be waived. It arises' as a matter of law out of the facts and circumstances "and its effect is to insulate the defendant’s negligence and remove it as an efficient cause of the injury or death.
■ Therefore, if the negligence of the carrier, acting through its flagman, in allowing said intestate to board the wrong train in Birmingham to go, to her contract destination in Mobile, brought her within the zone of danger, and as a proximate consequence she was injured so that she died (and this was a question for the jury), the innocent and necessary act of said intestate in going from the waiting room in Montgomery, where she was instructed to go and wait for the right train, to the train provided by the defendant for her carriage, and the incident thereof' — intestate’s fall on the steps — cannot operate as an efficient intervening cause to break the chain of causation arising from such negligence. Cook v. Continental Ins. Co., 220 Ala. 162, 168 , 124 So. 239 , 65 A.L.R. 921 ; Thompson v. Louisville & N. R. R. Co., 91 Ala. 496, 501 , 8 So. 406 , 408, 11 L.R.A. 146 ; Dye-Washburn Hotel Co. v. Aldridge, 207 Ala. 471, 475 , 93 So. 512 ; Armstrong, Adm’r v. Montgomery Street Ry. Co., 123 Ala. 233 , 26 So. 349 .
We repeat here what was said in the case last cited: “The logical rule in this connection, the rule of common sense and human experience as well, * * * is that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind.” 123 Ala. 249, 250 , 26 So. 354 .
Application overruled.
ANDERSON, C. J., and THOMAS, BROWN, and KNIGHT, JJ., concur.