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

• Citation: 172 Ala. 488,55 So. 616
• Court: Supreme Court of Alabama
• Decision Date: 18 May 1911
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. MCCURDY.

55 So. 616

172 Ala. 488

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

Supreme Court of Alabama

May 18, 1911

Appeal from City Court of Birmingham; Robert N. Bell, Special Judge.

Action by Elizabeth McCurdy against the Birmingham Railway, Light &amp Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Tillman Bradley & Morrow and L. C. Leadbeater, for appellant.

McArthur & Howard, for appellee.

SAYRE J.

Demurrer to the first count of the complaint was overrured. This count, after alleging that plaintiff was injured while a passenger on a car operated by the defendant as a carrier of passengers for hire, and describing her injuries with particularity, proceeds: "And plaintiff avers that her said injuries resulted as the proximate consequence of the negligence of defendant, or its servants or agents in charge of the operation of the said car upon which plaintiff was a passenger, as aforesaid." The objections to this count are stated to be that in its second alternative, which attributes plaintiff's injury to the negligence of defendant's agents, it fails to show that defendant's agents were guilty of negligence in the operation of the car and that it fails to show that defendant's agents were guilty of any negligence in the carriage of plaintiff as a passenger. The count is further said to be vague, indefinite and uncertain. Where the suit is by an employé against his employer, as was the case in Sloss-Sheffield Co. v. Smith, 166 Ala. 437, 52 So. 38, cited by appellant, some degree of particularity in averment is required. In such cases no presumption of negligence arises out of the fact of injury.

But, where a passenger suffers injury at the hands of a common carrier, the law, in the absence of all explanation, presumes it was the result of the carrier's fault, and casts on the latter the burden of overturning the presumption. L. & N. R. R. Co. v. Jones, 83 Ala. 376, 3 So. 902.

For this, and for the further reason that what the defendant did, and how he did it, and what he failed to do, are generally better known to the defendant than to the plaintiff, however insufficient these reasons may seem to a corporation conducting its business through the agency of many persons, where the suit is by a passenger, as here, great generality in the averment of negligence, amounting to hardly more than the statement of a mere conclusion, has been too long tolerated to be now made the subject of further discussion. Aside from some verbal niceties which are indulged, the argument for the demurrer in effect reiterates the common objection to generality of averment.

If we may reasonably assume for the moment the count to be capable of the construction that defendant's servants engaged at the time in the actual manipulation of the machinery of and on the car may have been at the same time performing some other service, not so immediately connected with the movement of the car, and performed that service negligently, or that defendant's servants in some other branch of the service may have been guilty of the negligence charged, still the plain averment is that plaintiff was a passenger, and that there was negligence on the part of defendant's servants which resulted in her injury. These averments are enough to show the liability of the defendant and to make the count proof against the demurrer. Armstrong v. Montgomery Street Railway Co., 123 Ala. 233, 26 So. 349; Birmingham Railway Co. v. Adams, 146 Ala. 267, 40 So. 385, 119 Am. St. Rep. 27; L. & N. R. R. Co. v. Church, 155 Ala. 329, 46 So. 457, 130 Am. St. Rep. 29; Birmingham Railway Co. v. Haggard, 155 Ala. 343, 46 So. 519.

We find nothing to the contrary of what we have said in Gordon v Tenn. Coal & Iron Co., 164 Ala. 203, 51 So. 316. In that case the plaintiff, who had no particular relation with the defendant, alleged that, while he was traveling along a highway across defendant's track, a car upon defendant's track ran upon or against him. The original complaint failed to show that defendant or its agents had anything to do with the movement of the car. If the plaintiff relied upon some negligence other than in the movement of the car, as may possibly have been the case under the complaint as originally drawn, that fact should have been averred, so as to avoid the injustice which would result if the complaint had been sustained against demurrer on a mere intimation that defendant was operating the car, and later the issues of fact allowed to be determined without reference to the truth of the intimation. The case is not clearly reported, but the fact is that the issues involved were submitted to the jury after the complaint had been amended so as to charge...