Central of Georgia Ry. Co. v. Williams

• Decision Date: 21 October 1919
• Docket Number: 7 Div. 583
• Citation: 17 Ala.App. 259,84 So. 633
• Parties: CENTRAL OF GEORGIA RY. CO. v. WILLIAMS.
• Court: Alabama Court of Appeals

84 So. 633

17 Ala.App. 259

CENTRAL OF GEORGIA RY. CO. v. WILLIAMS.

7 Div. 583

Court of Appeals of Alabama

October 21, 1919

Remittitur Filed December 16, 1919

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

Action by G.W. Williams against the Central of Georgia Railway Company for damages for injury to his wife while a passenger on its railway. From judgment for plaintiff in the sum of $700, defendant appeals. Judgment affirmed, after filing of remittitur of $450.

See also, 83 So. 63.

The complaint is as follows:

(1) The plaintiff claims of the defendant the sum of $3,000 damages for that, whereas, Georgia Ann Williams is and was at the time of the wrongs hereinafter complained of the plaintiff's wife and a member of plaintiff's family and residing with the plaintiff as his wife, and had been for a long time prior thereto, plaintiff avers that on or about to wit, the 28th day of October, 1917, the defendant was a common carrier of passengers by means of a railway over which it ran trains of cars propelled by locomotive steam engines for the transportation of passengers for pay, between Phoenix City and Smith's Station in Lee County, Ala., each said Phoenix City and Smith's Station being stations on the said railroad; and plaintiff avers that on said date the defendant carried the plaintiff's wife as its passenger and his said wife paid the defendant the price which the defendant charged therefor to transport her as its said passenger from Phoenix City to Smith's Station, and while in an effort to leave or get off of said train at Smith's Station when the same was standing still the same was suddenly started with a violent and quick jerk, and as a proximate consequence thereof plaintiff's said wife was caused to fall to the ground, striking the same with great force and violence, and her hip was dislocated, broken, crushed, mashed, bruised, and mutilated, her leg and side were mashed, bruised, mutilated, lacerated, her shoulder was broken, dislocated, mashed, crushed, bruised, mutilated, and lacerated, her arm was mashed, bruised, mutilated, crushed, and lacerated, and as a proximate consequence of the injuries complained of plaintiff has been put to great expense for medicine, medical care, and attention in and about his efforts to cure and heal said wounds and injuries of his said wife, and has devoted much time in waiting on, caring for, and providing for, and has been deprived of the society, companionship, and right of consort of, his said wife, all of which was proximately caused on account of the wrongs complained of; and plaintiff avers that he suffered all of said injuries and consequent damages by reason of and as a proximate consequence of the negligence of the defendant in and about the carriage or transportation of his said wife as its said passenger as aforesaid.

Charge F. There is a variation between the allegations and the proof in this case, in that it is alleged that Georgia A. Williams was thrown from the train by a sudden starting of the train by a quick jerk, and that the proof does not prove or try to prove said averment.

Assignment of error 4 is as follows:

The trial court erred in overruling the defendant's objection to the statement of plaintiff's counsel in his argument to the jury, as follows: "You know how railroads get their witnesses."

London, Yancey & Brower, of Birmingham, for appellant.

Riddle & Ellis, of Columbiana, for appellee.

BROWN P.J.

There is no assignment of error questioning any ruling of the court on the demurrers to the complaint, and it is a familiar rule that, in the absence of appropriate and specific grounds of demurrer questioning the sufficiency of the complaint, a ruling of the trial court thereon and proper assignment of error predicated on such ruling, on appeal, the averments of the complaint will be accorded a liberal construction in order to support the judgment. Dothan Chero-Cola Bottling Co. v. Weeks, 80 So. 734; Slight v. Frix, 165 Ala. 230, 51 So. 601. And in so construing the complaint, its averments will not be segregated, but each count will be considered as a whole and its several averments considered together. B.R., L. & P. Co. v. Donaldson, 14 Ala.App. 160, 68 So. 596; L. & N.R.R. Co. v. Smith, 163 Ala. 141, 50 So. 241.

When the complaint in this case is so treated, it appears therefrom with sufficient certainty that plaintiff's wife was a passenger on one of defendant's trains, and while the train was standing still at Smith's Station to allow passengers to disembark, and while she was in the act of leaving the train, the train "was suddenly started with a violent and quick jerk, and...