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

• Decision Date: 03 April 1906
• Citation: 40 So. 385,146 Ala. 267
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. ADAMS. a1
• Court: Alabama Supreme Court

40 So. 385

146 Ala. 267

BIRMINGHAM RY., LIGHT & POWER CO. v. ADAMS. a1

Supreme Court of Alabama

April 3, 1906

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"To be officially reported."

Action by Jesse L. Adams against the Birmingham Ralway, Light &amp Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action for damages resulting to a passenger from a collision of defendant's car with a train of cars on the Louisville & Nashville Railroad through the negligence of defendant's servants or agents in charge of the car on which plaintiff was a passenger. The first and second count alleges in substance the relation of carrier and passenger the payment of fare by passenger, the collision between the car on which plaintiff was a passenger and the train of cars on the Louisville & Nashville Railroad where the lines on grade, and the negligence of the servants or agents of the corporation in charge of the car, the proximate consequence of which resulted in the injury of the plaintiff. Count A was in the following words: "Plaintiff claims of the defendant, a body corporate doing business in Jefferson county, state of Alabama, $25,000 damages, for that on, to wit, February 3, 1904, plaintiff, while a passenger upon defendant's railway, at or near a station known as the 'L. & N. Crossing,' between Birmingham and Gate City in the county and state aforesaid, was injured as follows Plaintiff was bruised and mashed, shocked, and otherwise injured about his face, back, legs, head, stomach, eyes, and other parts of his person. His back was wrenched and sprained. He was scarred, crippled, and disfigured. His right eyesight was permanently impaired. His nervous system was wrecked, thereby causing plaintiff to endure very great mental and physical pain and suffering, and permanently rendering plaintiff less able to earn a livelihood. Plaintiff avers said injuries to have been proximately caused by the negligence of the defendant's servants in and about the carriage of the plaintiff as a passenger of the defendant." Count B is similar in all respects to A, except that it counts on the willful, wanton, or intentional negligence of defendant's servants.

Tillman, Grub, Bradley & Morrow, for appellant.

Denson & Denson, for appellee.

WEAKLEY C.J.

There is no bill of exceptions in the record, and the appeal is prosecuted to review rulings on demurrer to the four counts of the complaint. No argument or citation of authority is necessary to demonstrate that the demurrers to counts 1 and 2 were properly overruled. The important and controlling question arises upon count A, added by amendment. Count B is identical with the former in its essential averments, except that, instead of simple negligence, it charges willful, wanton, or intentional misconduct, and the principles to be announced with reference to count A will also apply to count B.

Many grounds of demurrer were assigned, but the only ones we deem it necessary to discuss, although all have been considered, are the following: (1) It does not appear what duty defendant owed the plaintiff; (2) it does not appear with sufficient certainty wherein or how defendant violated any duty it owed the plaintiff; and (3), for that the relation existing between plaintiff and defendant is not averred with sufficient certainty, in that the count fails to allege defendant was a common carrier.

Count A avers that the plaintiff, "while a passenger upon defendant's railway," was injured in a way specified, and that his injuries were proximately caused by the negligence of the defendant's servants "in and about the carriage of the plaintiff as a passenger of the defendant." Upon the authority of Armstrong v Montgomery Street Railway Co., 123 Ala. 233, 26 So. 349, and cases therein cited, it must be held that the count was not open to the objection because of the generality of its averment of negligence. Nor was it necessary to specially aver that defendant owed a duty to the plaintiff not to injure him. It has long been settled in this state that "when the gravamen of the action is the alleged nonfeasance or misfeasance of another, as a general rule, it is sufficient, if the complaint aver the facts out of which the duty springs and that the defendant negligently failed to do and perform," etc. Leach v. Bush, 57 Ala. 145; M. & M. Ry. Co. v. Crenshaw, 65 Ala. 566. And when the facts out of which the duty is supposed to spring are averred, and these facts show a duty to the...