Daniels v. Carney

• Decision Date: 15 November 1906
• Citation: 42 So. 452,148 Ala. 81
• Parties: DANIELS v. CARNEY.
• Court: Alabama Supreme Court

42 So. 452

148 Ala. 81

DANIELS v. CARNEY.

Supreme Court of Alabama

November 15, 1906

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

"To be officially reported."

Action by Ella Daniels, as administratrix, against James A. Carney administrator of Louisa Carney, deceased, to recover for personal injury resulting in the death of plaintiff's intestate. From a judgment sustaining demurrers to the complaint, plaintiff appeals. Affirmed.

Fitts &amp Stoutz, for appellant.

Gregory L. & H. T. Smith, for appellee.

DOWDELL J.

The complaint as originally filed contained two counts, and was afterwards amended by the addition of the third count, which latter count was subsequently amended. The complaint was demurred to, both as originally filed and as amended, which demurrers being sustained by the court, the plaintiff declined to further plead, and thereupon judgment was rendered for the defendant, from which judgment the present appeal is prosecuted. The court's ruling on the demurrers constitutes the basis of the first four assignments of error the fifth and last assignment being based an the final judgment rendered.

The suit is to recover damages for personal injury, resulting in the death of plaintiff's intestate by drowning, through the negligence of defendant's servants in the operation of defendant's steamboat, causing the small boat in which plaintiff's intestate was riding to be capsized in Mobile river. The theory of plaintiff's case is that the death of plaintiff's intestate was the proximate result of the failure of defendant's servants to exercise due care in the operation of defendant's steamboat after the discovery of the peril of said intestate. There is no pretense of any prior negligence in the operation of said steamboat whereby the accident resulted. On the contrary, it is averred that the steamboat was being operated in the usual and normal way. The theory, as well as the insistence in argument, of plaintiff's counsel, is that it was the duty of the servants, after the discovery of the peril, to cease the normal operation of the steamboat, by stopping the revolution of the propeller or paddle wheels of said boat, in order to prevent the creation of waves, which, it is alleged caused the swamping or capsizing of the small boat in which said intestate was riding.

To charge one with subsequent negligence, there must exist a prior knowledge on the part of the defendant of the peril of the person injured. The first count of the complaint, in counting on the failure of the defendant's servant or servants to exercise due care by the stopping of the revolutions of the paddle wheels of the said steamboat to prevent the creation of a succession of large waves, was defective, and subject to demurrer, in not averring knowledge on the part of the servant of the peril of the deceased, which knowledge was necessary to impose the duty claimed under the facts and circumstances stated. The count avers that the small boat, with its occupants, in which the intestate was riding, was plainly visible to defendant's servants. This may all be true, and yet the small boat, with its occupants, may not, as a matter of fact, have been seen by defendant's servants. To say that an object was plainly visible is not the equivalent to saying that it was seen. Such an averment leaves the main fact, that of actually seeing, and hence a knowledge on the part of defendant's servants of the perilous situation of plaintiff's intestate, to rest merely in inference. Good pleading requires that the facts which constitute the cause of action relied on should be stated in the complaint and not left in inference. Facts, when averred, may be established inferentially from other facts shown in evidence; but this is a rule of evidence, and not of pleading. In pleading, the facts themselves, whether they are to be established directly or inferentially, should be stated. The second count, while it avers that the small boat, with its occupants, was seen by the defendant's servants and in time to avoid the injury, does not aver that the peril of the deceased was an obvious one, or that it was known to defendant's servants. By the pleading this latter fact was left merely in inference, which rendered the count faulty. Both the first and second counts were, for the reasons above stated, subject to demurrer.

By the amendment of the third count the defects above pointed out were met and obviated by proper averments. The Mobile river is navigable water and a public highway, and, under the law the right to navigate the same is equally guarantied to every one. Const. 1901, § 24; Code 1896, § 2515. The exercise and enjoyment of this right is as much guarantied to the small craft as to the great steamer. Each...