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

• Decision Date: 28 November 1907
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. WRIGHT.
• Court: Alabama Supreme Court

44 So. 1037

153 Ala. 99

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

Supreme Court of Alabama

November 28, 1907

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

Action by E. A. Wright against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The complaint is in the following language: "(1) Plaintiff claims of the defendant the sum of $2,500 as damages, for that defendant, on, to wit, the 12th day of October, 1903 was engaged in operating a street railroad in the city of Birmingham, Jefferson county, Ala.; that at said time plaintiff became a passenger on one of defendant's cars running along First avenue to Twenty-Third street, thence along Twenty-Third street across Fourth avenue north, and thence on through said city in the direction of North Birmingham; that plaintiff became a passenger on said car at said time on First avenue to go to his home near the corner of Fourth avenue and Twenty-Third Street North in said city that it was the duty of said defendant then and there to carry plaintiff safely; that, failing in this duty, the defendant then and there so negligently conducted its said business that by reason of such negligence plaintiff received as a proximate result thereof personal injuries as follows [Here follows the list of the personal injuries received which are alleged to be permanent in their nature.] (2) Plaintiff adopts the averments of the first count, from the beginning thereof down to and including the word, 'safely,' and adds the following: That, failing in this duty and with a reckless disregard for the safety of the plaintiff, and knowing that the probable consequence thereof would be to inflict injury on the plaintiff, the employé or employés in charge of said car at said time and place, acting within the scope of his or their duty or duties as such employé or employés of such defendant, willfully, wantonly, or intentionally moved or ran said car, while plaintiff, an old man, was in the act of getting off said car, so that as a proximate result thereof plaintiff was violently thrown on the ground and received personal injuries as follows: [Here follows a description of the injuries received, which are alleged to be permanent.]" (3) Same as first count down to and including the word "safely," and adds the following: "That, failing in this duty, defendant then and there negligently moved or ran said car, while plaintiff, an old man, was in the act of getting off said car, so that as a proximate result thereof plaintiff was violently thrown to the ground and received personal injuries as follows: [Same as in other counts.]"

Demurrers were interposed to the first count, in that its allegations are insufficient, vague, uncertain, and indefinite, and do not present a cause of action against the defendant. The allegations of negligence are but the allegations of a conclusion, and the facts set out are not sufficient to enable the defendant to know what it has to defend against. It is not averred where plaintiff received his injuries, nor that he received them while occupying his relation of passenger. These grounds were assigned to the second count, and the additional ones that it is not averred in said complaint that defendant willfully, wantonly, or intentionally inflicted injury upon the plaintiff. While attempting to charge defendant with willful, wanton, or intentional infliction of injury, the facts alleged do not constitute that degree of misconduct on the part of the defendant. The same grounds of demurrer were interposed to the third count as to the first, with the additional grounds that it is not charged in said count that the defendant's car was moved or run while the plaintiff was in the act of alighting therefrom, nor is it alleged that defendant knew that the plaintiff was in the act of alighting from said car when the said car was moved. These demurrers having been overruled, the defendant pleaded the general issue and three special pleas of contributory negligence: (1) In negligently alighting or attempting to alight or disembark from said car of defendant while the said car was in motion. (2) In negligently attempting to alight without first ascertaining whether or not the car had stopped. (3) In the negligent manner in which he alighted or attempted to alight. Demurrers were overruled to these pleas, so far as the first and third counts are concerned, but sustained to the pleas as an answer to the second count. The defendant filed additional demurrers to the second count, raising the question of a joinder of corporate negligence with the negligence of an employé.

The other facts sufficiently appear in the opinion of the court.

Tillman, Grubb, Bradley & Morrow, for appellant.

Tomlinson & McCullough and Frank S. White & Son, for appellee.

McCLELLAN J.

The practice of charging negligence, in cases of this character in very general terms, has been too long santioned and approved by this court to now admit of consideration with a view to a change. It is settled. The complaint contains three counts, and their common averments state a relation of carrier and passenger just before and at the time of the injury complained of. With the exception of the second count, to which we will refer, simple negligence only is charged; and under the practice above restated we must hold the first and third counts to state causes of action in case, and not subject to the demurrers interposed. The third count ascribes the injury to the defendant's...