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

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, J.
• Citation: Birmingham Ry., Light & Power Co. v. Haggard, 46 So. 519, 155 Ala. 343 (Ala. 1908)
• Decision Date: 16 April 1908
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. HAGGARD.

46 So. 519

155 Ala. 343

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

Supreme Court of Alabama

April 16, 1908

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

Personal injury action by M. V. Haggard against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Count 1 was in the following language: "Plaintiff claims of the defendant, a body corporate operating an electric street railway in Jefferson county, state of Alabama, $10,000 as damages, for that on, to wit, December 19, 1903, plaintiff while a passenger upon the aforesaid railway, was injured at Fitts Street station, East Lake, county of Jefferson, state of Alabama, as aforesaid. Plaintiff was thrown very violently to the ground, thereby inflicting upon plaintiff very severe and internal injuries, and causing plaintiff to endure very great physical and mental pain and suffering, and permanently rendering plaintiff less able to earn any livelihood. Plaintiff avers said injuries to have been proximately caused by the negligence of the defendant's servants or agents in and about carrying the plaintiff as a passenger on the aforesaid railroad at the aforesaid time and place."

Demurrers were interposed to this count as follows: "For that it does not appear therefrom with sufficient certainty what duty defendant owed to plaintiff. It does not appear therefrom with sufficient certainty wherein or how the defendant violated any duty which it owed to plaintiff. It does not appear therefrom that plaintiff was a passenger on one of defendant's cars, or that defendant was a common carrier of passengers at the time. For that it does not appear therein wherein or how the defendant was guilty of negligence in and by carrying plaintiff as a passenger. For that it does not appear therefrom with sufficient certainty how or in what manner plaintiff was injured."

Tillman Grubb, Bradley & Morrow, for appellant.

Denson & Denson, for appellee.

McCLELLAN J.

There are two counts in the complaint, which seeks the recovery of damages for injuries to a passenger. The first charges simple negligence, and the second willful or wanton misconduct, on the part of the servants or employés of the defendant in control of the street car on which plaintiff was a passenger. The demurrer to the amended first count was properly overruled. That count, though general in its averments of negligence, conforms to all requirements under our rule permitting, in such cases, a terse and nonspecific allegation of the negligence relied on for a recovery.

Count 2, added by amendment, sufficiently charged willful or wanton misconduct on the part of the agents or servants of the defendant. Birmingham Ry. Co. v. Wright, 44 So 1037; Sou. Ry. v. Weatherlow, 44 So. 1019; Mobile, J. & K. C. R. R. v. Smith, 45 So. 57. Hence the demurrer to pleas of...