62 So. 816 (Ala. 1913), Birmingham Ry., Light & Power Co. v. Ely

CourtSupreme Court of Alabama
Writing for the CourtMAYFIELD, J.
JudgeMayfield and Sayre, JJ., dissenting in part.
Citation62 So. 816,183 Ala. 382
Date01 May 1913
Docket Number.

Page 816

62 So. 816 (Ala. 1913)

183 Ala. 382




Supreme Court of Alabama

May 1, 1913

Rehearing Denied June 19, 1913

Appeal from City Court of Birmingham; William M. Walker, Judge.

Action by Beatrice Ely against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Mayfield and Sayre, JJ., dissenting in part.

Tillman, Bradley & Morrow and Frank M. Dominick, all of Birmingham, for appellant.

Harsh, Beddow & Fitts, of Birmingham, for appellee.

Page 817


This action is to recover damages for personal injuries alleged to have been caused by a collision between appellant's street car and an automobile in which plaintiff was riding.

The first count of the complaint, omitting style of case and details as to character and extent of the injuries, was in the following language: "The plaintiff claims of the defendant $10,000 damages, for that, heretofore, to wit, September 18, 1911, while plaintiff was in a vehicle, to wit, an automobile, upon a public street in the city of Birmingham, Ala., a collision occurred between said vehicle and a street car operated by defendant upon said public street, and as a proximate consequence of said collision plaintiff was thrown or caused to fall, was greatly shocked, was mashed, bruised, cut, and otherwise injured in her person. *** Plaintiff alleges that defendant negligently caused or allowed said collision on the occasion aforesaid and plaintiff's said consequent injuries and damage."

The defendant demurred to this count, assigning, among others, the following special grounds of demurrer:

"(1) For that the averments of said counts are vague, uncertain, and indefinite.

"(2) For that it does not appear with sufficient certainty what duty the defendant owed to the plaintiff.

"(3) For that it does not appear therefrom with sufficient certainty wherein or how the defendant violated any duty which it owed to the plaintiff.

"For that sufficient causal connection does not therein appear between defendant's said negligence and plaintiff's alleged injuries.

"For that it does not appear therein with sufficient certainty how or in what manner defendant negligently caused or allowed said collision."

The trial court overruled the demurrer, and this ruling is the first assignment insisted upon as error.

We are of the opinion that this count was subject to one or more grounds of the demurrer, and that the trial court erred in this ruling. The only negligence, actionable or nonactionable, attempted to be alleged, is that "defendant negligently caused or allowed said collision on the occasion aforesaid, and plaintiff's said consequent injuries and damage." The gist of this allegation is that the defendant negligently caused or allowed the collision. The negligence being alleged in the alternative, the count can be no stronger than the weakest alternative--that defendant negligently allowed its car to collide with the automobile, and likewise allowed plaintiff to be injured. The count must be construed most strongly against the plaintiff, and it is therefore open to the construction that defendant negligently stopped its car on the street crossing, and that plaintiff willfully ran the automobile into the street car; or that defendant negligently stopped the car on the wrong side of the street, and that plaintiff thereafter, without other fault on the part of defendant, negligently or willfully ran the automobile into the street car. In neither event would the defendant be liable. If the count had alleged that the relation of passenger and carrier existed at the time, then it might have been sufficient. It would then have shown a duty owing from the defendant to the plaintiff, and a breach thereof, which proximately caused the injury; but it shows no such relation, and shows no breach of any duty, which proximately caused the injury complained of.

It is true that the count in plain and concise language alleges a collision between an automobile in which plaintiff was riding and a street car operated by the defendant, and injuries to plaintiff in consequence of the collision; but what caused the collision--whether it was an inevitable accident, or the result of some willful, wanton, or negligent act of the driver of the automobile--does not appear; and hence this necessary allegation must be presumed against the plaintiff. It does not show that defendant's negligence was the proximate cause of the injury. The count does conclude with a mere conclusion of the pleader that the collision was negligently caused or allowed by the defendant. The word "negligently," as used in this count, cannot does not perform the function or office of making the count good, if it would be bad without it. The count is very little, if any, better with the use of this word in the connection in which it is used than without the use of it. It does allege that the collision was negligently caused or allowed; but it does not show any particular act, or failure to act, which caused or allowed it. No overt act nor failure to perform any particular act causing or allowing the collision is alleged or attempted to be alleged. It merely alleges that the collision was negligently allowed. This probably shows that the action is based on negligence, and not on wantonness or willfulness; but it gives no indication of any particular act, or failure to do any particular act, which proximately caused or allowed the collision or the injuries complained of. This is entirely too general and too indefinite to put the defendant on notice of what, or against which it is to defend. The defendant or its agents may have been guilty of hundreds of negligent acts of commission and of omission, and of acts without which the injury would not have resulted, and yet not be civilly liable to the plaintiff for the collision or for the injuries complained of; for the reason that these acts were not the proximate or direct cause of the injury, but only the indirect or remote cause. It may be that the defendant owed the plaintiff no duty to do or to act differently, although its acts were negligent, in

Page 818

which case the defendant would not be liable, either because its negligence was not the proximate cause of the injury, or because it owed the plaintiff no duty to act otherwise. All negligence is not actionable. A man or a corporation may be guilty of negligence causing injury, and yet not be liable in damages for such injury. To render him liable it must have been actionable negligence; that is, the breach of a duty which he owed to the person injured, and it must have proximately caused the injury. It must have been the causa causans, not merely the causa sine qua non.

It is said in Shearman & Redfield on Negligence, § 3, that negligence, to constitute a cause of action, must be such an omission, by a responsible person, to use that degree of care, diligence, and skill which it was his legal duty to use for the protection of another person from injury as in a natural and continuous sequence causes unintended damage to the latter. As an illustration of this rule the text says, if a complaint against a common carrier should confine itself to an averment that the defendant had neglected to use ordinary care or that it was guilty of negligence in the carriage or the delivery of the goods, it would be bad without alleging that the defendant was a common carrier, or something equivalent thereto; that merely alleging that defendant was negligent, and that damages resulted to plaintiff, is not sufficient; facts must be alleged which show a duty or obligation and a breach thereof. It is said in all the texts and decisions upon the subject that there are various definitions of actionable negligence; but the authorities all agree that the word "negligence," when used in its legal sense, must obviously exclude all acts and omissions which do not violate any legal obligation or duty. If the defendant owed no duty, there can be no legal or actionable negligence. If he did owe a duty, but not to the person injured, then his negligence is not actionable. The complaint must state facts sufficient to show what the duty is, and that the defendant owed it to the plaintiff, not to some other person. It ought to be kept in mind in framing complaints for negligence that no action can be maintained upon an act of negligence alone, unless the breach of duty alleged is also alleged or shown to be the cause of the damage suffered. The mere fact or allegation that a defendant has been guilty of negligence followed by an accident resulting in injury does not make the defendant liable for the resulting injury. The connection of cause and effect direct must be alleged, and the defendant's breach of duty, not merely his negligent act, must be alleged, and facts must be alleged which show the duty and the breach thereof. It is not sufficient to allege the duty or the negligence in words, but facts must be alleged which show the duty and the breach thereof, and damages proximately resulting therefrom.

The negligence of the defendant may only put a temptation in the way of a...

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