Birmingham Belt R. Co. v. Drake

• Decision Date: 30 June 1911
• Citation: 56 So. 53,1 Ala.App. 354
• Parties: BIRMINGHAM BELT R. CO. v. DRAKE.
• Court: Alabama Court of Appeals

56 So. 53

1 Ala.App. 354

BIRMINGHAM BELT R. CO. v. DRAKE.

Court of Appeals of Alabama

June 30, 1911

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Ernest E. Drake against the Birmingham Belt Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Campbell & Johnston, for appellant.

Bowman Harsh & Beddow, for appellee.

PER CURIAM.

The first assignment of error insisted upon is that the court erred in overruling defendant's demurrer to the first count of the complaint. The reporter will set out this count and the demurrer thereto, in his report of the case.

The count was not subject to any of the grounds of demurrer. It alleged that plaintiff, at the time of the injury complained of, was upon the premises of the Continental Gin Company engaged in the business of such company, and that defendant company was operating a railroad, and that it entered the premises of the said gin company through a gate, and that it so negligently managed or operated the railroad that its train or cars struck the gate or the post to which the gate was fastened, knocking the gate down and against the plaintiff, and injuring him in the manner particularly alleged. While the negligence is alleged in very general terms, it is sufficient when considered in connection with all the other facts alleged.

All negligence is not actionable, and pleadings, to be sufficient to state a cause of action grounded on negligence, must affirmatively show that the negligence relied upon is actionable. If pleadings as to negligence show a duty owed by the defendant to the plaintiff, and a breach of that duty to the damage or injury of plaintiff, very general averments of negligence will suffice. As is often said, they need be but little more than conclusions; but the duty and its breach must be shown. Merely alleging that a given act was negligence, or was negligently done, without more, is not sufficient. Such pleadings may allege negligence; but the trouble is it is not in such cases "actionable negligence."

"Actionable negligence" has been defined by the Supreme Court of Alabama to be: "The failure to discharge a legal duty to the person injured. If there is no duty, there is no actionable negligence. Even if the defendant owes a duty to some one else, but does not owe it to the person injured, no action will lie. The duty must be to the person injured." Southern Railway Co. v. Williams, 143 Ala. 217, 38 So. 1013. In every action grounded solely on negligence, there are three essential elements to a right of recovery: First, a duty owing from defendant to plaintiff second, a breach of that duty; and, third, an injury to plaintiff in consequence of that breach. The rule has been thus clearly and succinctly formulated by the Supreme Court of Indiana (Faris v. Hoberg, 134 Ind. 269, 33 N.E 1028, 39 Am. St. Rep. 265): "In every case involving actionable negligence, there are necessarily three...