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

• Decision Date: 01 December 1911
• Citation: 57 So. 103,3 Ala.App. 424
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. ANDERSON.
• Court: Alabama Court of Appeals

57 So. 103

3 Ala.App. 424

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

Court of Appeals of Alabama

December 1, 1911

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

Action by Winnie Anderson against the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

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

Allen &amp Bell, for appellee.

WALKER P.J.

The grounds of demurrer assigned to count 1 of the complaint as amended distinctly raised the question of the sufficiency of its averments to show the existence of a duty on the part of the defendant (the appellant here) to accept the plaintiff as a passenger, that being the only duty claimed to have been breached.

It may be regarded as settled that it is for the court to pronounce the conclusion, from the facts or circumstances alleged in a complaint, as to what, if any, duty it shows was owing by the defendant to the plaintiff; and that as to this feature of a complaint counting on the alleged nonfeasance or misfeasance of another a statement of the pleader's conclusion on the subject cannot be accepted as a substitute for appropriate averments of the facts out of which a duty is supposed to have arisen. Tennessee Coal, Iron & R. Co. v. Smith (Sup.) 55 So. 170; Republic Iron & Steel Co. v. Williams, 168 Ala. 612, 53 So. 76; Alabama Consolidated C. & I. Co. v. Hammond, 156 Ala. 253, 47 So. 248; Leach v. Bush, 57 Ala. 145; Ensley Railway Co. v. Chewning, 93 Ala. 24, 9 So. 458.

The public character of the business of a common carrier of passengers imposes on one who undertakes it the duty of receiving and carrying without discrimination on a vehicle then in use by it for the purposes of public carriage all persons fit to be carried who may properly present themselves and seek transportation, so long as there are accommodations for passengers on such vehicle. The carrier may establish reasonable rules and regulations in regard to such matters as the times and places of receiving passengers. Pullman Car Co. v. Krauss, 145 Ala. 395, 40 So. 398, 4 L. R. A. (N. S.) 103; North Birmingham Railway Co. v. Liddicoat, 99 Ala. 545, 13 So. 18; Illinois Central R. Co. v. Smith, 85 Miss. 349, 37 So. 643, 70 L. R. A. 642, 107 Am. St. Rep. 293, 299; 4 Elliott on Railroads, §§ 1574, 1575, 1576; 2 Hutchins on Carriers, §§ 963, 966.

Count 1 of the complaint in this case, as the same was amended, after alleging that the defendant was a common carrier of passengers for hire or reward, proceeds as follows "Plaintiff alleges that on the date aforesaid she applied to the servant, agent, or employé of the defendant in charge of one of its said cars for transportation thereon, but that said servant, agent, or employé, acting within the line or scope of his employment, wrongfully and without legal excuse therefor, wholly failed or refused to permit plaintiff to become a passenger on said car, or to be transported thereon, as it was her intention or desire to become and to do. Said intention and desire then and there was well known to said servant, agent, or employé." The count contains no other averment of the facts or circumstances out of which the supposed duty to receive the plaintiff as a passenger arose. In considering these averments, the statement to the effect that the refusal to permit the plaintiff to become a passenger was wrongful and without legal excuse may be put out of view as expressive...