American Ry. Express Co. v. Reid

• Decision Date: 28 April 1927
• Docket Number: 3 Div. 760
• Parties: AMERICAN RY. EXPRESS CO. et al. v. REID.
• Court: Alabama Supreme Court

113 So. 507

216 Ala. 479

AMERICAN RY. EXPRESS CO. et al. v. REID.

3 Div. 760

Supreme Court of Alabama

April 28, 1927

Rehearing Denied June 30, 1927

Appeal from Circuit Court, Butler County; A.E. Gamble, Judge.

Action for damages for personal injuries by Edgar Reid, by his next friend, H.E. Reid, against the American Railway Express Company and Mack Stewart. From a judgment for plaintiff defendants appeal. Reversed and remanded.

Anderson C.J., and Sayre and Gardner, JJ., dissenting in part.

Thigpen & Poole, of Greenville, and S.H. Dent, of Montgomery, for appellants.

O.A Lane and Powell & Hamilton, all of Greenville, for appellee.

BOULDIN J.

American Railway Express Company, by its local agent and employees unloaded from an express car onto a truck a steel shaft, cylindrical in form, some 15 to 16 feet long, about 2 1/2 inches in diameter and weighing about 925 pounds. The truck, with the shaft thereon, was moved some 50 to 75 feet and left standing upon the cement platform of the Louisville & Nashville Railroad in Georgiana. Edgar Reid, 15 years of age, acting at the time as a newsboy, came to the station to get his newspapers and found them scattered upon the platform near the truck. While there, the heavy shaft, for some cause, rolled off the truck and struck plaintiff, resulting in a compound fracture of his leg.

The suit is for personal injuries, and counts upon negligence in that the shaft was so carelessly, insecurely, and negligently placed on the truck that it rolled off and injured the plaintiff.

The demurrers challenge the complaint for failure to show any duty toward the plaintiff. The duty of care being shown, a general averment of negligence is sufficient. But such facts must be averred as disclose a duty owing by the defendant to the plaintiff to do or not to do the thing complained of as the proximate cause of the injury. Cook v. Sheffield Co., 206 Ala. 625, 91 So. 473; Montgomery Light & Water Power Co. v. Thombs, 204 Ala. 678, 87 So. 205; Mobile Light & R.

Co. v. Ellis, 207 Ala. 109, 92 So. 106; Birmingham Ry. Light & Power Co. v. Cockrum, 179 Ala. 372, 60 So. 304; Sloss-Sheffield Steel & Iron Co. v. Weir, 179 Ala. 277, 60 So. 851; Snyder Cigar & Tobacco Co. v. Stutts, 214 Ala. 132, 107 So. 73; Feore v. Trammel, 212 Ala. 325, 102 So. 529; Demopolis Tel. Co. v. Hood, 212 Ala. 216, 102 So. 35; Birmingham, E. & B.R. Co. v. Stagg, 196 Ala. 612, 72 So. 164; Western Ry. of Alabama v. Mays, 197 Ala. 367, 72 So. 641; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; Southern Cotton Oil Co. v. Woods, 201 Ala. 553, 78 So. 907.

Under this rule it is sufficient if facts are alleged from which the law implies a duty of care toward the plaintiff. Such case appears where the wrongful or negligent act charged shows a breach of duty toward any and all persons that may be injured thereby. Thus, leaving an explosive bomb in a public alley is a breach of duty, implied by law, not to endanger persons in position to be injured by its explosion. Wells v. Callagher, 144 Ala. 367, 39 So. 747, 3 L.R.A. (N.S.) 759, 113 Am.St.Rep. 50.

The general duty not to negligently set fire to the property of another appears to be the basis upon which the court sustained count 2 in Louisville & N.R. Co. v. Marbury Lumber Co., 125 Ala. 237, 251, 28 So. 438, 50 L.R.A. 620. So counts charging wanton injury need not aver any special relation out of which the duty of care arises. It is the common duty of all persons not to wantonly injure the person or property of another. Southern R. Co. v. Gantt, 210 Ala. 383, 388, 98 So. 192; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469.

In the present case, the negligence relied upon is in the creation of a danger zone about the standing truck. As a condition for such actionable negligence it must appear the truck was at a place where defendants owed some duty toward plaintiff. If on defendants' premises and plaintiff a mere trespasser, no such duty would arise.

Under the general rule that pleadings must be construed most strongly against the pleader when challenged by apt demurrer, it must be held both counts of the complaint were defective for failure to aver sufficient facts to show a duty of care for the safety of the plaintiff at the time and place of the injury. The case of Birmingham Ry., Light & Power Co. v. Cockrum, 179 Ala. 372, 60 So. 304, is not a variance with, but clearly states the rule above applied. Count 3 in that case averred plaintiff was not at trespasser. The case is authority for the rule that if the plaintiff is shown not to be a trespasser on defendants' premises, it need not appear plaintiff was rightfully on the premises of another--sufficient if he was rightfully there so far as concerns the defendants.

Without dispute in the evidence, the place of the injury was upon the public platform of the railroad company. The plaintiff was there in the lawful conduct of his business, although this was not essential to his right of protection against negligence of the defendants at that place. The defendant Stewart, in person and as local agent of the express company, defendant, had full knowledge at the time of the place and fact of injury; had superintended the placing of the shaft on the truck, and moving the truck to the place of injury. That the injury was in fact at a place where defendants owed plaintiff the duty of ordinary care, and that this was known to defendants when suit was brought is not questioned.

"Hereafter no judgment may be reversed *** for error as to any matter of pleading *** unless in the opinion of the court to which the appeal is taken, *** after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties." Supreme Court Rule 45.

This rule is invoked by the appellee. Its application has been many times considered by this court.

In Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann.Cas. 1917D, 929, a case based upon the law of respondeat superior, the complaint was held defective for failure to aver the negligent agents were acting within the scope or course of employment, but error in overruling demurrer was held to be cured by instructions specially requiring proof of the omitted allegation.

In Jackson v. Vaughn, 204 Ala. 543, 545, 86 So. 469, 471, discussing rule 45, it was said:

"Under the mandate of this rule the fate of any judgment in a civil case that is tainted with error in the pleadings or procedure leading thereto is dependent upon what is disclosed by the entire record in that particular case. That is to say, each case stands upon its facts, and, of necessity, no iron-clad principle can be announced of the construction to be placed on this rule. However, we may say that under it our court has declared generally that if a complaint (not so fatally defective that a judgment based thereon would be arrested on motion) or a plea in a civil cause be defective for the reason that a necessary allegation is omitted, and a demurrer pointing out this defect has been improperly overruled, the judgment following will not be reversed on this account if the entire record discloses that the trial court by an appropriate charge instructed the jury specifically as to the necessity of proving the omitted allegation, and the record further shows that this omitted allegation was proved and considered."

In Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 601, 81 So. 341, the complaint was held insufficient in failing to show such right of possession in a bailee as will support an action by him for injury to the property. The court said:

"The averment of fact improperly omitted from the complaint, as the demurrer pointed out, was indisputably proven, from which it resulted that the erroneous overruling of the demurrer was rendered innocuous to the defendant."

In Southern R. Co. v. Dickson, 211 Ala. 481, 485, 100 So. 665, 668, it was said:

"But negligence comprehends and rests upon a breach of duty; and, when the injurious act is specified, it must be made to appear, either from the nature of the act, or from the accompanying circumstances, that a duty existed of which the act complained of was a breach. We think the complaint was subject in this respect to the apt ground of demurrer interposed.

"We cannot, however, for this cause, reverse the judgment, for the reason that the omitted allegation was nevertheless made an issue on the trial, and the jury were clearly and specifically instructed (by charges 20, 22 and 23) that plaintiff could not recover unless he showed that the engineer operating the train 'knew, or in the exercise of reasonable care ought to have known, that the plaintiff was in or would probably be in a position of peril at the time the jerk and shock was caused, if it was caused.' Under the rule declared in Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417 [Ann.Cas. 1917D, 929], and a long line of cases following it, the error in overruling the demurrer must be held as cured by the clear instructions requiring proof of the omitted allegation. That such a complaint states a cause of action, notwithstanding the omission of this allegation, was held in Southern Ry. Co. v. Carter, 164 Ala. 103, 51 So. 147."

It will be noted the defect in that case was the failure to aver the facts out of which the duty of care arose. We consider it a direct authority on the question now before us. Navco Hardwood Co. v. Bass, 214 Ala. 553, 557, 108 So. 452.

The complaint here states the quo modo of the accident in that it resulted from the shaft rolling off the truck, that the shaft was placed in this unsafe and insecure position by the negligence of defendants, and that the injury resulted proximately from such...