Birmingham Ry., Light & Power Co. v. Nicholas

• Citation: 181 Ala. 491,61 So. 361
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. NICHOLAS.
• Decision Date: 13 February 1913
• Court: Supreme Court of Alabama

61 So. 361

181 Ala. 491

BIRMINGHAM RY., LIGHT & POWER CO. v. NICHOLAS.

Supreme Court of Alabama

February 13, 1913

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by Lucinda Nicholas against the Birmingham Railway, Light &amp Power Company for damages for personal injury. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Dowdell C.J., dissenting in part.

The following are the counts of the complaint referred to in the opinion:

"(4) Plaintiff claims of defendant $10,000 as damages for that heretofore, on, to wit, August 2, 1911, defendant was a common carrier of passengers for hire and reward, operating electric cars for such purpose in Jefferson county, Ala. And plaintiff avers that at the time aforesaid in, to wit the town of Brighton, a municipal corporation, in said county and state, she was at or near a regular station or stopping place of defendant, where defendant's cars were accustomed to stop for the purpose of taking on and letting off passengers, and that she was at or near such station for the purpose of taking passage on one of defendant's cars. And plaintiff avers that there was at said time a valid ordinance of the said town of Brighton, making it unlawful for cars to run within the corporate limits of said town at a greater rate of speed than six miles per hour, and that at the said time and place, which was within the corporate limits of the said town of Brighton, one of defendant's cars was running at a greater rate of speed than six miles per hour in violation of said ordinance, and that as a proximate consequence of such greater speed than six miles per hour of the said car the plaintiff was run into and knocked down by the same, and as a proximate consequence received great personal injuries, suffered great physical pain and mental anguish to her damage aforesaid, and was put to great expense for doctor's services and medicines, and was permanently made less able to work and earn a livelihood to her damage as aforesaid, for which she sues."

(7) Same as 4 down to and including "Jefferson county, Ala.," and adds: "And plaintiff avers that she was at the time and place aforesaid at or near the defendant's car track at or near East Brighton station on defendant's line at a point where a public street or thoroughfare or crossing of said town, which was constantly used by a large number of people in passing to and fro at this point, crossed the same, and the plaintiff says that the motorman in charge of said car knew of plaintiff's position of peril, yet, notwithstanding such knowledge, ran the said car with wanton negligence at a high and dangerous rate of speed over the said crossing, and against or so near to the plaintiff that she was knocked or thereby caused to fall into a ditch or culvert, as a proximate consequence of which she received great personal injuries, suffered physical pain and mental anguish, was made sick and sore, put to great expense for doctor's services and medicines, and nurse's hire in and about the curing and care of her said injuries, and was permanently disabled and disfigured, all as a proximate consequence of the wanton negligence of the motorman in charge of said car as aforesaid."

"(8) Plaintiff claims of defendant $10,000 damages for that heretofore, on, to wit, the 2d day of August, 1911, the defendant was a common carrier of passengers for hire and reward, operating cars propelled by electricity for such purpose in the town of Brighton, a municipal corporation, in Jefferson county, state of Alabama. And plaintiff says that at the time and place aforesaid she was standing at or near the defendant's car track at or near East Brighton on defendant's line at a point where a public thoroughfare or street or other crossing crossed the said track, and that said thoroughfare or street or crossing was constantly and continuously used by a large number of people passing to and fro across the said track at said point. And plaintiff avers that, while she was so standing at the said time and place, the defendant negligently ran one of its cars against or so near to the plaintiff at said street, or thoroughfare, or crossing, at a high and dangerous rate of speed, that plaintiff was thereby knocked or caused to fall into a culvert or ditch, as a proximate consequence of which she received great personal injuries, has suffered great physical and mental anguish, and was disabled for a long time from working and earning money, and has been permanently made less able to work and earn money, was made sick and sore, and has been put to great expense for doctor's services, medicines, nurse's hire, and proper diet, all as a proximate consequence of the negligence of the defendant in negligently running its said car against or near the plaintiff at a high and dangerous rate of speed at said crossing aforesaid, for which she sues."

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

Goodwyn & Ross, of Bessemer, for appellee.

MAYFIELD J.

Appellee sued appellant to recover damages for personal injuries. The wrongful act alleged is that appellant's motorman ran a car against or so near to plaintiff that she was knocked, or thereby caused to fall, into a ditch or culvert. In two counts the wrong was alleged to be due to simple negligence, and in the other it is denominated wantonness.

The place of the injury--that is, the locus in quo--is alleged to be at or near East Brighton station, on defendant's car line, at or near the defendant's car line, at a point where a public street or thoroughfare crossed the same. In one count (count 4) it is alleged that plaintiff was at this point for the purpose of taking passage on one of defendant's cars. In the other counts it is not alleged for what purpose plaintiff was at this point. In no count is it alleged that plaintiff was on the track or in dangerous proximity thereto, except inferentially, according to an alternative that the car struck her. According to the other alternative, she may have been at safe distance from the track, but, on account of fright was caused to fall into the ditch or culvert. In none of the counts is it made certain whether plaintiff was walking along or near to the defendant's car track, or whether she was crossing it, or whether she was traveling along the public street or thoroughfare, or whether she was merely crossing such street or thoroughfare, or whether she was standing still, or was loitering on or at the crossing of the street car track and the street or thoroughfare. It is not made to appear whether the street car track is laid along so as to form a part of the street or thoroughfare, or whether it merely crosses the street or thoroughfare. While it is alleged that there is a crossing of the street car track and the street, it is not alleged whether the crossing is at grade, or above or below grade. In other words, it is left wholly to conjecture whether the plaintiff was a trespasser on or near the defendant's track at the time of the injury. The allegations to show this fact are extremely indefinite and uncertain. Some of the alternative allegations, standing alone, clearly show that she was a trespasser at the time of the injury, while others leave it in doubt whether she was a trespasser or was rightfully at the place where she was injured. Mr. Gould, Pleading, § 51, p. 80, says: "An important requisite in all pleading is certainty. This requisite implies that the matter pleaded must be clearly and distinctly stated, so that it may be fully understood by the adverse party, the counsel, the jury, and the judges, and especially (as regards the declaration) that the defendant may be enabled to plead the judgment, which may be rendered in the cause, in bar of any subsequent action for the same cause; for if a vague or partial description of the matter in controversy, in a given case, were allowed, and in a subsequent suit of the same thing the declaration should contain a full and precise description of it, the cause of action, though actually the same in both cases, would not appear from a comparison of the two records to be so."

The object and purpose of good pleading is to disclose, and not to conceal, the real issue to be tried. The rules of pleading are to be tested, as well as dictated, by good sense and sound logic. The science of pleading is only a means for obtaining the ends of justice. Attempts to evade or conceal the real issue, or attempts to stifle justice in the webs of form, each merits no more countenance than the underlying rules of law compel the court to accord. It would be a deplorable condition of the law of pleading if the plaintiff could file a count or a complaint good against all proper or appropriate grounds of demurrer, yet leaving it impossible for the defendant or the court to know of what particular wrong or injury the plaintiff complains. While a plaintiff, under our system of pleading, may join two or more causes of action in several separate counts, he cannot so join them in one count. A plaintiff is not allowed, against an appropriate demurrer, in a single count, to allege in a doubtful and uncertain manner two or more distinct and incongruous causes of action, in order to hit some possible cause of action that he may be able to prove on the trial. The defendant has the right to be informed of the particular cause of action for which he is sought to be held liable in each count.

At common law alternative averments were not allowed in civil or criminal cases, and some courts held that the error was not cured by a verdict. But a different rule has long prevailed in this state; in fact, we have a statute expressly allowing certain alternative averments in indictments. Cr.Code, §§ 7149-7152. A similar rule of...