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

• Decision Date: 26 October 1915
• Docket Number: 889
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. FRAZIER.
• Court: Alabama Court of Appeals

69 So. 969

14 Ala.App. 269

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

No. 889

Court of Appeals of Alabama

October 26, 1915

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by Pearl Frazier against the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The pleadings sufficiently appears, as do the questions of the court's oral charge. Charge 3 is as follows:

In determining the compensation that you will award plaintiff, you are not authorized to consider as the amount to be awarded her the sum that you would accept as payment for having your wife fall under similar circumstances and suffer similar injuries.

Tillman Bradley & Morrow, John S. Stone, and P.P. Waldrop, all of Birmingham, for appellant.

Erle Pettus, of Birmingham, for appellee.

BROWN, J.

The first count of the complaint, after showing by appropriate averments that the defendant was engaged in business as a common carrier, that in the prosecution of its business it operated a street railway system and operated thereon cars for the carriage of freight and passengers, that the plaintiff was a passenger on one of its cars, further avers:

"That defendant's servants or agents in charge or control of said car so negligently conducted themselves in and about the management or control of the same that the plaintiff was thrown violently to the ground at the following place, namely, First avenue and Nineteenth street Birmingham, Ala., and had her head injured, her back hurt her side injured, her shoulder sprained, was badly bruised and wounded and made sick and sore, rendered for a long time unable to work and earn money and was permanently injured and plaintiff avers her said wounds and injuries were the proximate consequence and caused by reason of the negligence of defendant's servants or agents as aforesaid."

Appellant, citing as an authority to sustain its contention Birmingham Railway, L. & P. Co. v. Parker, 156 Ala. 251, 47 So. 138, contends that the averments above italicized render the averments of this count equivocal and subject to demurrer; in other words, that the italicized averments ending with the words "as aforesaid" are dependent averments, and that they are not sustained by what precedes them.

While it is unquestionably true that these averments are dependent, they are dependent upon, and fully sustained by, the general averment of negligence in the body of the count, to wit:

"That defendant's servants or agents in charge of control of said car so negligently conducted themselves in and about the management and control of the same," etc.

The demurrers were not well taken, and were properly overruled. Birmingham Ry., L. & P. Co. v. Ryan, 148 Ala. 75, 41 So. 616. In the case of Birmingham Ry., L. & P. Co. v. Parker, supra, the count stated the particular facts supposed to constitute the negligence, and the general averment of negligence was made dependent upon the particular facts stated. In such a case, unless the particular facts constitute actionable negligence, the count is subject to demurrer. Johnson v. Birmingham Ry., L. & P. Co., 149 Ala. 529, 43 So. 33; Birmingham Ore & Mining Co. v. Grover, 159 Ala. 276,

48 So. 682.

Special charge 3 refused to defendant is argumentative, and it was properly...