Central of Georgia Ry. Co. v. Bell

• Decision Date: 18 June 1914
• Docket Number: 630
• Citation: 65 So. 835,187 Ala. 541
• Parties: CENTRAL OF GEORGIA RY. CO. v. BELL.
• Court: Alabama Supreme Court

65 So. 835

187 Ala. 541

CENTRAL OF GEORGIA RY. CO. v. BELL.

No. 630

Supreme Court of Alabama

June 18, 1914

Appeal from Circuit Court, Talladega County; Hugh D. Merrill, Judge.

Action by R.G. Bell, as administrator of L.F.D. Rosser, deceased against the Central of Georgia Railway Company, for damages for the death of his intestate. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint is as follows:

Count 1: Plaintiff, as such administrator claims of defendant the sum of $50,000 damages for that, whereas, on or about, to wit, May 31, 1913, defendant was a common carrier of passengers by means of a railroad over which it ran trains of cars propelled by locomotives or steam engines between Sylacauga, in Talladega county. Ala., and Libby, otherwise known as Arkwright, in Shelby county, Ala. Plaintiff avers that at Sylacauga defendant maintained a depot for the accommodation of its passengers, which said depot was located a few feet west of defendant's said railroad, and a few feet south of the Louisville & Nashville Railroad at the intersection of said railways in Sylacauga, and about 10 or 15 feet from said depot. Plaintiff avers that on said date plaintiff's intestate went to defendant's said depot at Sylacauga for the purpose of taking passage on one of defendant's passenger trains from Sylacauga to Libby as aforesaid; and plaintiff avers that on said date there was a side track maintained by defendant and used by it between the main line of said railroad and said depot at Sylacauga, which said track was about 5 or 6 feet from said depot, and it was necessary for defendant's passengers, in an effort to board defendant's passenger train which was operated over the main line, to cross over said side track in going from the depot to the passenger train at Sylacauga; and plaintiff avers that on said date, while his intestate was standing between said tracks and said depot waiting for the arrival of said defendant's passenger train to take passage as aforesaid, and while said intestate was near said side track and about 30 minutes before said passenger train was due to arrive, the agents or servants of defendant in charge of a freight train, and acting within the line and scope of their authority as such, wantonly, willfully, or intentionally caused a freight car to run against plaintiff's intestate, knocking him down, and the wheel or wheels of said freight car ran over one of plaintiff's intestate's legs and so mutilated it that it was necessary to amputate it, and that such other serious injuries were inflicted on the person of plaintiff's intestate that, as a proximate consequence thereof, plaintiff's said intestate died on or about the 1st of June.

Count 3: Plaintiff adopts all of the first count of this complaint except the words "wantonly, willfully, or intentionally" where they occur therein, and substitutes in lieu thereof the word "negligently"; and as part of this count plaintiff adds the following:

Plaintiff further avers that the place where plaintiff's said intestate was standing at the time he was run against by said freight car is a place prepared by defendant for defendant's passengers to stand while waiting for the arrival of said passenger trains on which plaintiff's said intestate was intending to take passage.

Barnes Denson & Denson, of Opelika, for appellant.

Riddle & Burt and Knox, Acker, Dixon & Sims, all of Talladega, for appellee.

McCLELLAN J.

The action is for damages, instituted by appellee against appellant, which is a common carrier.

Appellee's intestate (L.D.F. Rosser) was killed at Sylacauga by being run upon by cars in operation on appellant railway.

The report of the appeal will contain amended counts 1 and 3, upon which the trial was had.

The pleas were the general issue, and, in addition, as respects the third count, contributory negligence on the part of Rosser. Count 1, as last amended, ascribed Rosser's injury to the wanton, willful, or intentional misconduct of defendant's servants whereby a freight car was run against Rosser, killing him. The third count attributes Rosser's injury to simple negligence. Both counts aver Rosser's then relation to the carrier to have been that of a passenger--one at a station of the carrier for the purpose of taking passage.

There was demurrer to the first count; and of its grounds one is here asserted to have been well taken, viz.: That the wrong averred is not alleged to have been the proximate cause of Rosser's injury. The argument is that the legal requirement for a sufficient averment of relation between the wrongful cause and the damnifying effect alleged is to not met by an averment that the wrong charged was a proximate cause of the injury suffered. The contention, if not hypercritical, is unsound. The count was not subject to demurrer on any ground.

It is next insisted that the third count showed by its averments that Rosser himself was guilty of contributory negligence, barring a recovery by his personal representative. The seventh ground of demurrer pointed this objection. It appears from the averments of the third count that Rosser, alleged to have been then on the premises for the purpose of taking passage on the carrier's train soon to arrive, was standing at a place "prepared by the defendant for the defendant's passengers to stand while waiting for the arrival of said passenger train," and that he was negligently injured by the act or omission of the servants of defendant in charge of a freight train then in operation over defendant's track. In such cases it has been repeatedly ruled that general averments charging negligence are all-sufficient. There is nothing on the face of the count to show any negligence at that time on the part of Rosser. The fact that he was on or near the side track, where he was stricken by the defendant's car or train, could not effect to invest his position with any element of wrong or breach of duty or of care when it is specifically averred that he was then in a place whereat provision had been made by defendant for such as he to stand until the arrival of his train. To affirm that such a count imported contributory negligence would require the assumption that, though there invited to stand for purposes of passage on the carrier's trains, the acceptor did so at his peril--an assumption that could not be indulged in the light of the count's full allegations. Here, also, the averment of proximate cause was sufficient. There was no error in overruling the demurrer.

"Whether or not a person is a passenger is generally a question for the jury, and always so when different inferences may be drawn from the testimony" bearing on that particular issue. North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 545, 550, 13 So. 18.

Under the ample definition of passenger announced in Ala. City Ry. Co. v. Bates, 149 Ala. 487, 43 So. 98, these are the elements essential to constitute the relation of...