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

• Decision Date: 16 December 1909
• Citation: 164 Ala. 23,51 So. 303
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. WEATHERS.
• Court: Alabama Supreme Court

51 So. 303

164 Ala. 23

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

Supreme Court of Alabama

December 16, 1909

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by T. S. Weathers against the Birmingham Railway, Light &amp Power Company for injuries received while a passenger. Plaintiff had judgment, and defendant appeals. Reversed.

Denson and McClellan, JJ., dissenting.

The count considered in the opinion is as follows:

"The plaintiff claims of the defendant seven thousand five hundred dollars as damages, for that heretofore, to wit, on the 8th day of May, 1906, defendant was a common carrier of passengers for hire and reward, by means of a car operated by electricity, in Birmingham, Alabama; that on said day plaintiff boarded said car as defendant's passenger and became defendant's passenger on said car, and while plaintiff was upon said car, and was defendant's passenger thereon, said car started or jerked, or the speed thereof was suddenly increased, and as a proximate consequence thereof plaintiff was thrown or caused to fall or struck upon or against said car or some hard substance therein, and was made sore and sick, and was crippled and disfigured, his leg was bruised, mashed, and an ulcer was caused thereon, and plaintiff was confined to his house for a long time, and was caused to go on crutches for a long time, was rendered for a long time unable to work and earn money, his health and physical stamina were greatly and permanently injured, plaintiff suffered great mental and physical pain, and was put to great trouble, inconvenience and expense for medicine, medical attention, care, and nursing in or about his efforts to heal and cure his said wounds and injuries. Plaintiff alleges that he was thrown or caused to fall or be struck as aforesaid, and to suffer said injuries and damage, by reason and as a proximate consequence of the negligence of defendant in or about carrying plaintiff as defendant's passenger as aforesaid.

"(2) Plaintiff refers to and adopts all the words and figures of the first count, from the beginning thereof, to and including the words 'heal and cure his said wounds and injuries,' where they first occur together in said count. Plaintiff adds thereto the following words of averment: Defendant's servant or agent, acting within the line and scope of his authority as such, in charge or control of said car, wantonly or intentionally caused plaintiff to suffer said injuries and damage as aforesaid."

Tillman, Grubb, Bradley & Morrow, for appellant.

Bowman, Harsh & Beddow, for appellee.

SAYRE J.

In an opinion handed down on a day of the last term we indicated our opinion that the demurrer to the complaint should have been sustained. Counsel for the appellee complains strenuously of that judgment, and we, having in mind the rights of the parties, have been willing to reconsider the question involved, and have done so.

In a long line of cases to be traced back through a hundred volumes of our Reports to Leach v. Bush, 57 Ala. 145, it has been held 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 avers facts out of which the duty to act springs, and that the defendant negligently failed to do and perform, etc. It is not necessary to define the quo modo, or to specify the particular acts of diligence he should have employed in the performance of such duty. 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; and hence it is that, in such cases, a general form of averment is sufficient. In the numerous cases in which this question has been raised the rule quoted from Leach v. Bush has unquestionably been accepted as meaning that most general allegations of negligence, amounting to conclusions only, may be received as meeting the requirements of our system of pleading; but it has not been understood to dispense with a categorical averment that the defendant was guilty of negligence. The burden of allegation has generally been discharged by an allegation that the defendant negligently did or failed to do thus and so. In L. & N. R. R. Co. v. Jones, 83 Ala. 376, 3 So. 902, which was a suit by a passenger, it was held sufficient to allege that the defendant so negligently and unskillfully conducted itself in carrying a passenger, and in conducting, managing, and directing the coach upon which plaintiff was, that the coach was derailed, to the injury of plaintiff. In Armstrong v. Montgomery Street Railway, 123 Ala. 233, 26 So. 349, it was held, in a case of the same character, that an averment that the defendant so negligently conducted its business of carrying passengers that by reason of such negligence plaintiff received injury sufficiently stated a cause of action.

Not until the case of Birmingham Ry., L. & P. Co. v. Adams, 146 Ala. 267, 40 So. 385, 119 Am. St. Rep. 27, so far as we are informed, was approval given to a complaint in this form, viz. (after allegation that plaintiff was injured while a passenger): Plaintiff avers that said injury was proximately caused by the negligence of the defendant's servants in and about the carriage of the plaintiff as a passenger. Similar complaints have been sustained in L. & N. R. R. Co. v. Church, 155 Ala. 329, 46 So. 457, and Birmingham Ry., L. & P. Co. v. Haggard, 155 Ala. 343, 46 So. 519, and doubtless in other late cases which we have not at hand just now. We mention this form of latest adoption, not to dissent from its use in ordinary cases as a sensible and practicable averment of negligence, though it may be said in strictness that it contains no categorical allegation of negligence, but simply to note that it marks the limit of permissible generality in averment. Nor need we discuss the idea that such exceeding great generality of averment expedites or facilitates the equal administration of justice. It seems to have become fixed in our system of pleading, and we anticipate no radical departure from it, unless by legislative sanction. What we have said is incidental to another proposition to which we are leading, which is that the complaint is defective under a rule of pleading which is that the sufficiency of a pleading, which undertakes to go into particulars, must be judged by reference to those particulars.

In Birmingham Ry., L. & P. Co. v. Parker, 156 Ala. 251 47 So. 138, this court had under consideration a complaint by a passenger in which he charged that the car, upon which he was being carried, "was started or jerked, or the speed thereof suddenly increased, and as a proximate consequence plaintiff was thrown," etc. This was taken to be a statement of the quo modo of defendant's negligence. The...