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

Decision Date28 November 1911
Citation57 So. 262,3 Ala.App. 448
PartiesBIRMINGHAM RY., LIGHT & POWER CO. v. HUNNICUTT.
CourtAlabama Court of Appeals

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

Action by John Hunnicutt against the Birmingham Railway, Light &amp Power Company for damages for injury to him while a passenger. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The pleadings sufficiently appear from the opinion, as do the exceptions to evidence. The following charges were refused to defendant: "(5) Before you can find for the plaintiff in this case, you must be reasonably satisfied from the evidence in this case that plaintiff was compelled, on account of the overcrowded condition of the car upon which he was riding, to ride upon the running board of the car. (6) If you believe from the evidence in this case that Jim Ogletree did not fall from the car as a proximate consequence of the negligence of defendant's agents, servants, or employés, you must find for the defendant, provided you also believe from the evidence that there was room inside the car where plaintiff could have stood or sat." The pleas in the case set up the fact of contributory negligence, because plaintiff voluntarily rode upon the running board of said car, which was on the outside thereof, while the same was running at a high rate of speed, although he could have ridden inside of said car, had he chosen to do so, and also that he voluntarily assumed this position, when he could have gotten inside the car.

Tillman Bradley & Morrow and John S. Stone, for appellant.

Goodwyn & Ross, for appellee.

PELHAM J.

The appellee brought suit in the court below against appellant, a common carrier, operating cars propelled by electricity, to recover damages for personal injuries alleged to have been received by him while a passenger by being thrown, jerked, or knocked from the foot board or running board of one of appellant's cars, on which appellee alleges he was compelled to ride because of the overcrowded condition of the car.

The first count of the complaint alleges the overcrowded condition of the car, the relation of passenger, etc., and avers "that said car was running at a high rate of speed so that the same swayed and lunged or jerked from one side to the other to such an extent that one of the passengers of the car was thrown against the plaintiff and he was knocked off the car upon the ground," and, after describing the injuries, contains the further allegation: "And the plaintiff avers that his said injuries were the proximate consequence of the negligence of the defendant's employés in charge of said car in negligently allowing or permitting the said car to become so overcrowded that the said passenger was thrown against the plaintiff, knocking him off and injuring him as aforesaid."

The defendant demurred to this count and assigned, among other grounds of demurrer, that the averments are inconsistent and repugnant and fail to apprise defendant wherein or how it violated any duty owed to the plaintiff. The several acts are charged as co-operative causes, cumulative and descriptive of the one act of negligence counted upon, and all together averred as having contributed to the alleged injury. The first or stating part is a description of the mode in which the injury was inflicted, and is averred by way of inducement, and contains no averment of the negligence relied upon. The specification of negligence which is averred as a ground of liability is incorporated as a distinct and independent averment and constitutes the concluding paragraph of the count. No other specification of negligence is made as such, but one cause of action is stated, and but one specification of negligence is made; and the defendant was clearly informed of the matter to be put in issue. The description of the mode in which the injury was inflicted may have been stated with unnecessary particularity, but, if so, is but descriptive of the cause of action, and the plaintiff would not be entitled to recover unless his proof made out the essential matters of description with equal particularity. Smith v Causey, 28 Ala. 655, 65 Am. Dec. 372; Lewman v. Andrews, 129 Ala. 170, 29 So. 692; L. & N. R. R. Co. v. Johnson, 79 Ala. 436.

And when the complaint states a good cause of action it is not subject to demurrer because of redundant allegations that could be stricken out on motion as surplusage. Hayes v. Miller, 150 Ala. 621, 43 So. 818, 11 L. R. A. (N. S.) 748, 124 Am. St. Rep. 93; Highland Ave. & B. R. R. Co. v. Dusenberry, 94 Ala. 413, 10 So. 274; Kennon v. W. U. T. Co., 92 Ala. 399, 9 So. 200; L. & N. R. R. Co. v. Hall, 91 Ala. 112, 8 So. 371, 24 Am. St. Rep. 863; G. St. Ry. Co. v. Hanlon, 53 Ala. 70.

The second count of the complaint adopts that part of the first count of the complaint containing a description of the manner in which the injury was inflicted and alleges negligence in general terms upon the part of the defendant in the conduct of its business in carrying plaintiff as a passenger, and that by reason of such negligence and as a proximate consequence thereof plaintiff suffered the alleged injury and damage.

That the plaintiff, having averred he was a passenger on defendant's car when the injury complained of was received, may declare in general terms on the negligence of defendant, is a settled rule....

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6 cases
  • Atlantic Coast Line R. Co. v. Jones
    • United States
    • Alabama Court of Appeals
    • November 11, 1913
    ...... the allegations of this count. Birmingham R.L. & P. Co. v. Hunnicutt, 3 Ala.App. 448, 57 So. 262. ... action. Birmingham So. Ry. Co. v. Latimer, 141 Ala. 420, 38 So. 363, 109 Am.St.Rep. ... running under its own motive power, but pulled or hauled in a. train of cars in a manner ......
  • Boswell v. Bethea
    • United States
    • Supreme Court of Alabama
    • January 29, 1942
    ...... . . Arthur. D. Shores, of Birmingham, for appellant. . . Thos. S. Lawson, Atty. ... Birmingham Railway, Light & Power Co. v. Hunnicutt, 3. Ala.App. 448, 57 So. 262; ......
  • Birmingham Ry., Light & Power Co. v. Donaldson
    • United States
    • Alabama Court of Appeals
    • April 6, 1915
    ...... imposes on the defendant a higher duty. Code § 1269. . . If the. complaint states a cause of action, it is not the office of a. demurrer to rid it of redundant and superfluous averments;. such averments should be eliminated by motion to strike. B.R., L. & P. Co. v. Hunnicutt, 3 Ala.App. 448, 57. So. 262. The averment following the above-quoted averments. and [14 Ala.App. 166] found in counts 1 and 2, to wit,. "and for persons of his age, plaintiff being 68 years. old," is of this class, and under the rule stated did. not render these counts demurrable. . . ......
  • Preston Motors Corporation v. Wood
    • United States
    • Supreme Court of Alabama
    • June 29, 1922
    ...... . Weatherly,. Birch & Hickman, of Birmingham, for appellant. . . Harsh,. Harsh & Harsh, of ... perform. 4 R. C. L. 609; Montgomery South. Ry. v. Matthews, 77 Ala. 357, 54 Am. Rep. 60; Stone v. ...268, 52 So. 648;. B. R. L. & P. Co. v. Hunnicutt, 3 Ala. App. 448, 57. So. 262, and authorities cited. We ......
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