9 So. 252 (Ala. 1891), Georgia Pac. Ry. v. Davis

Citation:9 So. 252, 92 Ala. 300
Opinion Judge:MCCLELLAN, J.
Attorney:James Weatherley, for appellant. White & Houze, for appellee.
Case Date:April 30, 1891
Court:Supreme Court of Alabama

Page 252

9 So. 252 (Ala. 1891)

92 Ala. 300




Supreme Court of Alabama

April 30, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

This action was brought by Thomas F. Davis against the Georgia Pacific Railway Company, to recover damages for personal injuries alleged to have been sustained by the negligence of the defendant in allowing a rock to project too far in one of the cuts on its road-way. There were two counts in the complaint, and to each of these counts the defendant demurred, and its demurrer was overruled by the court. Upon the evidence as adduced the court gave the following charge in writing at the request of the plaintiff: "(10) The conductor, Edmonds, was charged with the administration of the company's rules while running the train, and his assent that a brakeman should vary from such rules was the assent of the company, and the plaintiff was not guilty of contributory negligence in so varying from it." The defendant duly excepted to this charge, and also reserved separate exceptions to the refusal of the court to give the following charges, requested by it in writing: "(25) The burden is on the plaintiff to establish to your satisfaction by the evidence every material allegation of his complaint, and every material fact upon which his right of recovery depends; and if you believe from the evidence that the plaintiff would not have been injured if he had been on top of the train when it entered the cut, and if the evidence leaves your minds in doubt as to whether or not he was ordered out on top of the train before it entered the cut, you should find for the defendant." "(28) The burden of proof is on the plaintiff to establish by a preponderance of the evidence that he was at his post of duty when he was injured; and if the testimony upon this point is equally balanced, or preponderates in favor of the defendant, your verdict should be for the defendant." From a judgment for plaintiff defendant appeals.

James Weatherley, for appellant.

White & Houze, for appellee.


The objection taken by the demurrer to the first count of the complaint as amended is that it does not sufficiently specify the defect in defendant's road-way which caused the injury complained of. The averment in this regard is that "the defendant, by its neglect and want of care, allowed its road-way to be and become greatly out of repair, unsafe, and dangerous, *** and by reason thereof the plaintiff, while in said employ, [as a brakeman,] and in the performance of his duties as such brakeman, was violently struck against a projecting rock," and thereby suffered the injuries on account of which he sues. It would require

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a good deal of ingenuity to draw from these facts any other conclusion or reach any other result as to the meaning of these averments than that the defect in the road-way consisted in the projection of a rock approaching so nearly to passing cars as to strike brakeman while in the discharge of their ordinary duties as such. This is that certainty to a common intent required in pleading, and is a sufficiently specific averment of the defect counted on.

2. The negligence laid in the second count of the complaint is twofold. It alleges negligence of the conductor in ordering plaintiff to ascend to the top of the train at the point of the defect, and also the negligence of the defendant itself because of the existence of the defect,-the perilous projection of the stone; and, in effect, that the defect arose from defendant's negligence. It is clear that the negligence of the conductor was dependent upon and resulted from the negligence of the company. But for the defect due to a want of care of the defendant the conductor's act could not have been a negligent one. With the defect the defendant was liable, with or without concurring negligence on the part of the conductor. Without the defect, the conductor could not have been negligent, or, had he been, no injury would have resulted. And the allegation of the conductor's negligence concurring with that of the defendant may be entirely disregarded. It may be granted, indeed, that this count fails to charge any negligence on the part of the conductor for which the company would be responsible, yet, charging as it does actionable negligence and resulting injury against the corporation, the latter would none the less, by reason of the abortive averments as to the conductor's want of care, still be liable for the injuries suffered through its own negligence. Railway Co. v. Cummings, 106 U.S. 700, 1 S.Ct. 493; Booth v. Railway Co., 73 N.Y. 38; Stetler v. Railway Co., 46 Wis. 497; Paulmier v. Railroad Co., 34 N. J. Law, 157. The first assignment of demurrer to this count is a "speaking" demurrer. It alleges that the only negligence counted on is that of the conductor in giving the order. This, in our opinion, as we have said, is not the case; and the remaining grounds of demurrer, which proceed upon this erroneous interpretation of the count, must fall with it. The objection taken to the count because of the generality of its averments of negligence is untenable. Numerous adjudications of this court support the view that under our system of pleading very general averments, little short, indeed, of mere conclusions of a want of care and consequent injury, leaving out the facts which constitute and go to prove negligence, meet all requirements of the law. Railroad Co. v....

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