Appeal
from Circuit Court, Jefferson County; C. B. Smith
Judge.
Count
A of the amended complaint is as follows:
"Count
A. The plaintiff claims of the defendant Three Thousand
Dollars as damages for that heretofore, to-wit: On April
27th, 1940, at to-wit: Seven o'clock in the evening, the
plaintiff was in a retail store located at to-wit: 2310-2nd
Avenue North, in Birmingham, Alabama, by invitation of the
proprietor thereof.
"And
plaintiff avers that on said occasion the defendant was a
common carrier for hire and reward by means of street cars
and on said occasion a street car of the defendant loaded
with a number of fare-paying passengers was being operated by
defendant along a street car track running along second
Avenue in front of said store where plaintiff was, and said
street car was on said occasion within the charge and control
of a crew consisting of a motorman and a
conductor who were operating said car on said
occasion.
"And
plaintiff avers that on said occasion said street car
encountered in its path on said track an automobile truck
stopped in such a position as to obstruct said track and to
arrest the further progress of said street car, unless
removed therefrom, and plaintiff avers that said stopped
truck was not then within the charge or control of its driver
or of any person having authority from its owner to operate
it.
"And
plaintiff avers that on said occasion the motorman of said
street car, acting within the line and scope of his authority
as the motorman of said street car, accosted a third party
one Murphy who was not the driver of said truck and who was
not in charge or control thereof and instructed him to clear
said obstruction from said street car track by driving said
truck to a position where it would not obstruct said track as
aforesaid, and that on said occasion the said Murphy informed
said motorman that he was not the driver of said truck and
that he was not in charge thereof and that he was not
competent to operate same, and plaintiff avers that
thereafter the said motorman again instructed and required
the said Murphy to clear said obstruction from said street
car track by driving said truck to a position where it would
not obstruct said street car track.
"And
plaintiff avers that on said occasion in compliance with said
requirements and instructions of said motorman the said
Murphy did attempt to drive or mechanically operate said
truck into such a position that it would no longer obstruct
said street car track, and in so doing did negligently
operate said truck and negligently caused or negligently
allowed the same to run into upon or against the plaintiff or
into objects which were thereby propelled against the
plaintiff, and as a proximate consequence of all of the
foregoing the plaintiff was injured in various parts of her
person, and plaintiff suffered the wounds, injuries and
damages set forth and claimed in the first count of her
complaint in this case, wherefore, she sues."
Count
B adopts all of Count A and adds the following:
"Plaintiff avers that on said occasion the truck at the
time and place when it was stopped so as to constitute an
obstruction on said track as aforesaid was loaded with large
and heavy timbers one of which protruded from the rear of
said truck across and in front of the path in which it would
have been necessary for said street car to move in order to
proceed to its destination."
Count
C adopts all of Count B and adds the following:
"Plaintiff avers that on said occasion an emergency
arose such that it reasonably appeared to the motorman in
charge of said street car that in order to be able to proceed
with said street car to its destination without much delay in
its schedule it would be necessary for him to employ someone
other than the crew of said street car to remove said
obstruction from said street car track, and that he did
pursuant to such emergency employ the said Murphy for said
purpose and did, as aforesaid, require him to operate said
truck on the occasion when it caused the plaintiff to suffer
the injuries and damages herein claimed."
Count
D adopts all of Count B and adds the following:
"Plaintiff
avers that on said occasion there was in force and effect a
company rule promulgated by the Birmingham Electric Company
and applicable to the duties of said motorman in the
following words and figures, viz.:
"7
Responsibility-
"The
motorman is in charge of the car and is held
responsible-
"For
the safe running of the car.
"For
the proper operation of the car and its machinery.
"For
running car according to schedule.
"For
switching the lights at the terminus of line to change lights
from front to rear in the headlights and route signs.
"For
cutting out electric cab heaters when reaching barn.
"For
proper display of route and destination signs.
"The
conductor is in charge of the passengers on the car and is
held responsible-
"For
the safety and convenience of the passengers.
"For
the collection and proper accounting of fares.
"For
running the car according to schedule.
"For
signal lights on rear end of train.
"For
cutting off heaters during day and on arrival in barn.
"For
protection of rear end of train when stopped on main line by
going back not less than five poles to stop
any car following."
Pertinent
parts of Count E appear in the opinion.
Count
F is the same as Count D, adding the following:
"Plaintiff
avers that on said occasion there was in force or effect a
company rule promulgated by the defendant and applicable to
the duties of said motorman in the following words and
figures, viz.:
"28.
Blockade-
"All
motormen, conductors or operators must assist in clearing a
blockade, and where help is required to get cars moving,
conductor or operator, of car first in block must summon
assistance. Motorman or operator of first car and crew or
operator of second car will also be held responsible for
being sure this assistance has been summoned. Expense of
telephone message will be refunded upon application at
office."
Count
G adopts all of Count D and adds the following:
"Plaintiff
further avers that on said occasion there was in force or
effect a company rule promulgated by the defendant and
applicable to the duties of said motorman in the following
words and figures, viz.:
"54.
Obstructions On Track-
"When
an obstruction such as an automobile, truck, wagon, steam
roller, concrete
mixer, or other obstruction of like
character is stalled or disabled on track motorman will not
attempt to pull such obstruction off the track by chains or
other attachments, or push it off in any manner, unless
instructed specifically to do so by a transportation official
or Chief Dispatcher.
"The
circumstances should be reported to Chief Dispatcher at
3-6094, and motorman should then be governed by his
instructions."
For
Count H, "Plaintiff refers to and adopts all of Count A
except that there are stricken from Count A the words
'and required' where they occur together in said
count, and there are stricken from Count A the words
'Said requirements and' where they occur together in
said count."
Harsh,
Harsh & Hare, of Birmingham, for appellant.
Lange,
Simpson, Brantley & Robinson and W. P. Rutledge, all of
Birmingham, for appellee.
THOMAS, Justice.
The
court sustained demurrers to the count as amended and
plaintiff took a nonsuit for such adverse ruling of the
court.
The
unusual provisions of the complaint setting forth the facts
ascribing negligence to the defendant car company are
contained in the statement of the case.
The
sufficiency of the pleading is construed most strongly
against the pleader. Thompson et al. v. City of
Mobile, 240 Ala. 523, 199 So. 862. In considering the
complaint, the particular facts averred must show whether or
not an emergency existed. Jackson v. Vaughn, 204
Ala. 543, 86 So. 469.
It is
the insistence of appellee that it is immaterial whether such
emergency reasonably appeared to exist to the motorman of the
Birmingham Electric Company at such time and place of
operation (Birmingham Ry. Lt. & Pr. Co. v. Weathers, 164
Ala. 23, 51 So. 303; Central Kentucky Traction Co. v
Miller, 147 Ky. 110, 143 S.W. 750, 40 L.R.A.,N.S.,
1184),-that the averred facts must show the existence of such
emergency.
As to
this contention the appellants say that if an unforeseen
contingency arises rendering it necessary in the
employer's interest that his employe in charge at the
time and place have temporary assistance, the law implies
authority to procure such necessary help, and for such action
of the employe, the master is liable for injury negligently
inflicted by such temporary assistant. Georgia Pac. R.
Co. v. Propst, 83 Ala. 518, 3 So. 764; Id., 85 Ala. 203,
4 So. 711; Marks v. Rochester Railway Co., 146 N.Y.
181, 40 N.E. 782; 9 Am.Neg.Cas. 639; 76 A.L.R. 964.
In the
case of St. Louis & San Francisco R. R. Co. v. Hunt, 6
Ala.App. 434, 60 So. 530, 531, it is observed: "'In
such cases the master-that is, the railroad company-must be
regarded as constructively present, and some one must be
regarded as invested with a discretion and a right to speak
in his name. One thus speaking, although ordinarily a
servant, may now have the authority of an agent. He may have
a right to give orders, and, although ordinarily a servant
with those whom he addresses, he is now elevated, by
necessity, to a higher position. He can command and they must
obey.' American Railroad Law (Baldwin) p. 253, § 8;
Georgia Pac. Ry. Co. v. Propst, 83 Ala. 518, 3 So.
764; 3 Thompson On Neg. § 3175; 5 Rapalje & Mock's
Dig. Railway Law, p. 734."
In St....
