Broyles v. Central of Georgia Ry. Co.

• Decision Date: 16 December 1909
• Citation: 52 So. 81,166 Ala. 616
• Parties: BROYLES v. CENTRAL OF GEORGIA RY. CO.
• Court: Alabama Supreme Court

52 So. 81

166 Ala. 616

BROYLES v. CENTRAL OF GEORGIA RY. CO.

Supreme Court of Alabama

December 16, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by Mrs. Mamie Broyles against the Central of Georgia Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The complaint was as follows: Count 2: "Plaintiff claims of the defendant the like sum of $20,000 as damages, for that heretofore, to wit, on or about the 14th day of November 1906, the defendant was engaged in carrying passengers for hire between Birmingham, Ala., and Montezuma, Ga.; that on or about said date the plaintiff entered a car on one of defendant's trains, in the city of Birmingham, Ala., and while riding therein, and while the said car was at or about Kellyton, Ala., the said car became wrecked or derailed, and as a result thereof the plaintiff was thrown against a portion of said car in which she was riding, and was bruised maimed, wounded, and injured internally and externally, and as a result thereof she has been caused to suffer," etc., a catalogue of which is given. The averments in counts A and B as to negligence are sufficiently set out in the opinion.

The following pleas were filed: (1, 2, and 3) The general issue. (4) "For further answer to each of the counts separately and severally, defendant says that when plaintiff presented herself as a passenger, and got upon defendant's train at Birmingham, she had in her possession, or her mother, with whom she was at the time, and who undertook to arrange for the transportation of plaintiff had in her possession, a pass issued by defendant to one Mrs. J. F. Slover and daughter; and the plaintiff, or her mother, Mrs. Little, presented said pass to the defendant's conductor without disclosing that the plaintiff and Mrs. Little were not the parties mentioned, described, and referred to in said pass, but as if they were the parties entitled to ride thereon; and defendant says that plaintiff was not Mrs. J. F. Slover, or Mrs. Slover's daughter, and was not entitled to ride on said pass, and had no other right to be on said train, and was accepted as a passenger and carried upon said train upon the said conduct or act of the plaintiff or her mother in presenting said pass to the defendant's conductor, and the belief of defendant's servant in charge of said train that plaintiff was one of the persons entitled to ride on the pass issued to Mrs. J. F. Slover and daughter; and defendant avers that its servants or agents did not know that plaintiff was not one of the persons entitled to ride on said pass; and defendant says that the plaintiff neither paid nor offered to pay anything for her transportation of said train from Birmingham to Kellyton." Plea 5 sets up the same state of facts, and alleges that the pass entitled Mrs. Slover and daughter, and no one else, to ride thereon, and was not intended for the use of the plaintiff, and did not entitle her to ride thereon, and avers that the plaintiff was neither Mrs. Slover nor her daughter. Plea 7 is in all respects similar to the other two.

The following replications were filed to the pleas: (1) "That if any pass or authority for being upon said train was presented to or accepted by the conductor or agent of defendant, and was a pass or authority for another to ride upon the said train other than plaintiff's mother or herself, it was without the knowledge of plaintiff." (2) "Plaintiff says that she entered upon plaintiff's train at Birmingham, intending to be a passenger thereon from Birmingham to Montezuma, Ga.; that she was in company with her mother, who had the said pass or token; that she, the plaintiff did not have possession of said pass or token, and did not deliver the same to the conductor or agent of defendant; but that her mother had the said pass or token, and delivered the same to the said conductor or agent of the defendant, and that the said conductor or agent received the same. Plaintiff avers that she went upon said train or car in good faith, believing that she had a right to be there as a passenger, and not knowing that she had no right to be received as a passenger upon said train or car under said token or pass, and that said conductor or agent of the defendant received from plaintiff the sum of $1 for the right to ride on said car or train."

Arthur L. Brown, for appellant.

London & Fitts, for appellee.

EVANS J.

This action was brought by the appellant, Mrs. Mamie Broyles, against appellee, the Central of Georgia Railway Company, seeking damages for personal injuries sustained by her while on one of the regular passenger trains of defendant en route from Birmingham, Ala., to Montezuma, Ga. The train was derailed near Kellyton, Ala., and plaintiff sustained injuries by reason thereof. There are 22 assignments of error by appellant to the rulings of the court below upon the pleadings and the evidence.

The demurrer to second count of complaint was properly sustained. Said count charges only simple negligence and does not show that plaintiff was rightfully in the car of defendant. Construing said count most strongly against the pleader, as the law requires, we must conclude therefrom that plaintiff was a trespasser, and, therefore, that defendant owed her no duty except not to willfully, wantonly, or intentionally injure her. Beyer v. Louisville & Nashville Railroad Co., 114 Ala. 429, 21 So. 952; James M. Brown & Co. et al. v. Scarboro,

97 Ala. 316, 12 So. 289.

The demurrer to counts A and B were properly sustained for the same reasons above given for sustaining demurrer to count 2. The allegations of count A as to negligence are as follows: "Plaintiff avers that said wreck or derailment was caused or brought about by the gross or reckless negligence of defendant, its agents, servants, or employés, whilst engaged in or about the duties of their employment. And plaintiff avers that said gross and reckless negligence consisted in this, to wit, that rotten, unsound, and insecure cross-ties were allowed to remain under the rails of said road at the place where said wreck or derailment occurred, and that said track was in an unsafe condition, thereby causing said wreck or derailment of said train when passing over said defective track. Plaintiff avers that the injuries so received by her were proximately caused by said gross and reckless negligence." We are of opinion that the facts as set out in said count, when construed most strongly against the pleader, do not constitute anything amounting to willfulness or wantonness. This court could not say that an occasional rotten, unsound, and insecure cross-tie amounted to willfulness or wantonness even if known to defendant. We would not be understood as saying that cross-ties might not be rotten, unsound, and insecure to sufficient extent in number and degree to constitute wantonness and willfulness to run a passenger train over them at sufficient rate of speed. But what we say is that the averments in said count A, construed as the law construes them, do not make a case of wantonness or willfulness. We therefore construe said count to allege that plaintiff was a trespasser on said car and was injured by the simple negligence of defendant.

We think that count B is subject to the same criticism as count A. The averments in both counts A and B constitute simple negligence. Stringer's Case, 99 Ala. 410, 13 So. 75; K. C., M. & B. R. R. Co. v. Crocker, 95 Ala. 412, 11 So. 262; L. & N. R. R. Co. v. Barker, 96 Ala. 435, 11 So. 453.

Demurrers to pleas 4, 5, and 7 were properly overruled. The pleas clearly allege facts showing that the plaintiff practiced a fraud upon defendant; or her mother, acting for her, practiced a fraud upon defendant; and plaintiff was enjoying the benefits of such fraud, at the time she received the injuries complained of, and after the conductor in charge of the train had demanded her fare. Such being the case, defendant was under no duty to carry plaintiff as a passenger, and the relation of passenger and carrier did not exist, and plaintiff was a trespasser. If there are any defects in said pleas, they are not pointed out by the demurrer.

The demurrer to replication 1 was well taken and properly sustained. If the other matters set up in the pleas were true, it is manifestly immaterial whether she knew or did not know the matters set up in said replication. If plaintiff's mother was acting as her agent in tendering said pass for plaintiff, she cannot be heard to say that she did not know the contents thereof and thereby escape the consequences of such fraud.

If there was error in sustaining demurrer to replication 2, it was error without injury, in so much as said replication is a substantial reproduction of the allegations of count E of the complaint, so far as said replication undertakes to show the right of plaintiff to be upon defendant's train. The plaintiff had the full benefit of the matter there pleaded in the issue raised by the general issue filed to said count E. Pleas 4, 5, and 7...