Ensley Ry. Co. v. Chewning

• Citation: 93 Ala. 24,9 So. 458
• Parties: ENSLEY RY. CO. v. CHEWNING.
• Decision Date: 11 June 1891
• Court: Supreme Court of Alabama

9 So. 458

93 Ala. 24

ENSLEY RY. CO. v. CHEWNING.

Supreme Court of Alabama

June 11, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

This action was brought by the appellee, G. A. Chewning, against the appellant railway company, and sought to recover damages for personal injuries caused by the alleged negligence of the defendant, through its employes, which resulted in the plaintiff's arm being cut off by one of the defendant's trains. There were three counts in the complaint, which are unnecessary to be set out at length. A demurrer to the first count of the complaint was overruled. There were four charges given at the request of the plaintiff, all of which were duly excepted to by the defendant. The second, third, and fourth are as follows "(2) The law requires that the engineer or other person having control of the running of a locomotive on any railroad must blow the whistle or ring the bell at least one-fourth of a mile before reaching any regular station or stopping place on such road, and continue to blow the whistle or ring the bell, at short intervals, until he has reached such station or stopping place. And if the jury believe from the evidence that the place at which plaintiff was struck was a regular station or stopping place on defendant's road, and that neither the bell was rung nor the whistle so blown, and that the failure to so ring the bell or blow the whistle proximately caused plaintiff to be struck, or contributed to his being struck, and if the plaintiff was not guilty of contributory negligence, then the defendant is liable, and the jury should so find. (3) It was the duty of the defendant to provide sufficient light at night at its regular stations or stopping places, at and about the time of the arrival and departure of its trains, for the safety and convenience of passengers, and for persons who desired and intended to travel on its trains; and if the jury believe from the evidence that the place at which plaintiff was struck was a regular station or stopping place on defendant's road and that he was struck at night, and that defendant had provided no such lights at said station or stopping place this would constitute negligence on the part of the defendant; and if it proximately caused, or contributed to cause, plaintiff to be struck by the engine, and if the plaintiff was not himself guilty of contributory negligence the defendant is liable, and the jury should so find. (4) If the jury believe from the evidence that the rate of speed at which the train was running at the time and place where the defendant was struck was negligent or reckless, and that such rate of speed proximately caused plaintiff to be struck, and that the plaintiff himself was guilty of no contributory negligence, then the defendant is liable, and the jury should so find." There was judgment for the plaintiff, and the defendant brings this appeal, and assigns the various rulings of the lower court as error.

Hewitt, Walker & Porter, for appellant.

Arnold & Evans, for appellee.

CLOPTON J.

The defect in the first count of the complaint assigned as cause of demurrer consists in the omission to state facts showing a duty owing by defendant to plaintiff, and its negligent performance. After stating that defendant was engaged in the business of a common carrier of passengers, propelling cars by steam, the count avers, generally, that the company "did, through its agents and servants, so carelessly negligently, and improperly propel and drive an engine and train, so being used by said defendant, that by and through the carelessness, negligence, and improper conduct of the said defendant, by its agents and servants, the engine and train, so being propelled and driven as aforesaid, ran against plaintiff with great force and violence," knocking him down, and injuring him, as therein stated. For aught that appears from the count, plaintiff may have been a passenger, or an employe, or a mere trespasser. Admitting of more than one construction, that least favorable to plaintiff will be adopted. While it has been said that the Code forms of pleading consist of general allegations of legal conclusions, rather than a statement of the particular facts which will support them, and though the statute requires that "all pleadings must be as brief as is consistent with perspicuity, and the presentation of the facts or matter to be put in issue in intelligible form, *** yet the facts must be so presented that a material issue in law or fact can be taken by the adverse party thereon." Code, § 2664. Ordinarily, the rules of good pleading require that the facts from which the conclusion of negligence is deducible should be averred, not mere conclusions of law. City Council v. Gilmer, 33 Ala. 116; Insurance Co. v. Moog, 78 Ala. 284. This rule has been relaxed, from necessity, in cases where the cause of action consists in the non-performance or misperformance of a duty. In such cases the rule has been thus stated: "When the gravamen of the action is the alleged nonfeasance or misfeasance of another, as a general rule it is sufficient if the complaint aver facts out of which the duty to act springs, and that the defendant negligently failed to do and perform, etc; not necessary to define the quo modo, or to specify the particular acts of diligence he should have employed in the performance of such duty." The reason given is: "What the defendant did, and how he did it, and what he failed to do, are generally better known to the defendant than to the plaintiff; and hence it is that in such cases a general form of averment is sufficient." Leach v. Bush, 57 Ala. 145. Under the rule as thus stated, a general averment of the negligence has been held sufficient, when the complaint averred that the plaintiff sustained the relation of passenger to the railroad company, or was an infant of tender years, not capable of contributory negligence, or that the injury was to stock. Railroad Co. v. Jones, 83 Ala. 376, 3 South. Rep. 902; Railway Co. v. Crenshaw, 65 Ala. 566; Railroad Co. v. Thompson, 62 Ala. 494. The statement of either of the foregoing facts has been regarded as a sufficient averment of facts, showing the duty to act; but in no case, except in Railroad Co. v. Waller, 48 Ala. 459, has a general averment of simple negligence been held sufficient when not accompanied by an averment of facts from which the duty originates. In that case the death of plaintiff's intestate resulted from a collision. The complaint, as in this case, did not state that the decedent was a passenger or employe, or had any connection with the railroad company. The ruling that the complaint contained a proper statement of facts was based on the erroneous principle that the collision itself, and the consequent death of plaintiff's intestate, were facts sufficient to create a presumption of negligence, for which the defendant was responsible. Under our decisions, a trespasser cannot maintain an action against a railroad company for injuries sustained while trespassing on its road-bed, unless such injuries were caused by reckless, wanton, or intentional negligence. If a complaint affirmatively shows that the plaintiff is a trespasser, an actionable injury is not shown, unless alleged to have been caused recklessly, wantonly, or intentionally. The presumption of negligence of such character and degree does not arise from the mere fact of injury to a trespasser. The count, failing to aver any relation or connection between plaintiff and defendant which creates the duty to use the highest degree of care, should therefore be construed as if he were an intruder. It may be that, had the count averred the engine and train were run against plaintiff by reckless, wanton, or intentional negligence, it would have been held sufficiently certain,-comporting with our system of pleading,-though no special acts or omissions constituting the negligence were averred. But when, in such case, the complaint avers simple negligence, it is insufficient, the same as if it had affirmatively shown that plaintiff was a trespasser. Neither can the doctrine of error without injury be applied when the defendant is compelled to take issue on an insufficient count; especially in view of the fact that the court refused to instruct...