Holley v. Seaboard Air Line R. Co.

• Decision Date: 20 September 1973
• Citation: 291 Ala. 510,283 So.2d 168
• Parties: Ruby Jo HOLLEY, as Adm'x of the Estate of Horace James Salser, Deceased v. SEABOARD AIR LINE RAILROAD COMPANY, a corp., et al. SC 209.
• Court: Alabama Supreme Court

Page 168

283 So.2d 168

291 Ala. 510

Ruby Jo HOLLEY, as Adm'x of the Estate of Horace James Salser, Deceased v. SEABOARD AIR LINE RAILROAD COMPANY, a corp., et al.

SC 209.

Supreme Court of Alabama.

Sept. 20, 1973.

Wallace & Ellis, Columbiana, Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellant.

Cabaniss, Johnston, Gardner & Clark and Drayton T. Scott, and Fournier J. Gale, III, Birmingham, for Seaboard Air Line Railroad Co.

George S. Brown, Birmingham, for William C. Hatfield.

COLEMAN, Justice.

Plaintiff appeals from a judgment for defendants in action for wrongful death of plaintiff's intestate which allegedly resulted from the act of the defendant railroad in wrongfully maintaining 'a barricade' in the vicinity of a place where the tracks of defendant railroad overpassed a public highway.

The action was brought against two defendants; namely, the defendant railroad and one Hatfield who was driving an automobile in which plaintiff's intestate was riding at the time of his injury. Trial was by a jury and judgment was rendered in favor of both defendants. Hatfield asserts in brief that none of the assignments of error is based on anything the trial court did with respect to Hatfield. In her reply brief, plaintiff says Hatfield should have the judgment affirmed as to him.

Plaintiff's complaint contained five counts. The court sustained demurrer to Counts 1 and 3. Plaintiff withdrew Count 4. The court overruled demurrer to Counts 2 and 5, and trial was on those two counts. Defendants pleaded the general issue in short by consent with leave, etc.

The record on appeal does not contain any evidence or the court's oral charge.

The action of the court in sustaining demurrer to Count 3 is the only error relied on by plaintiff. The substance of the facts and other matters alleged in Count 3 is as follows:

Plaintiff claims damages for that plaintiff's intestate was a passenger for hire in a vehicle over which he had no direction or control;

Hatfield was driving the vehicle over a public road at a point where defendant railroad maintains an overpass over said public road;

defendant railroad was under a duty to construct and maintain the approaches to said overpass crossing in a reasonably safe condition for use of the public approaching the overpass on said road;

defendant railroad knew that, prior to the day of the injury, members of the public traveling said road by automobile would unintentionally and frequently veer said automobiles off the traveled portion of said road where it curves and travel onto property owned by defendant railroad;

defendant railroad '. . . constructed a barricade Along its property line at a place where the property of the defendant Seaboard Air Line Railroad Company, a corporation abutted the property of the State of Alabama, on which said public road, Alabama Highway #25 was constructed, so as to prevent said automobiles from veering off said public road and onto the said property of the defendant, Seaboard Air Line Railroad Company, a corporation, at said curve along said approach, and plaintiff avers that' (Emphasis Supplied) the defendant railroad negligently breached its duty to maintain said approach in a reasonably safe condition for use of the general public in this that:

'. . . It negligently failed to build a barricade that would be reasonable safe for members of the general public to strike without the likelihood of death or great bodily injury . . .,' but negligently built a barricade 'designed and installed at such a place and in such a fashion and manner that it would reasonably totally wreck such automobiles and kill or inflict great bodily harm to occupants of such automobiles . . .';

said automobile in which plaintiff's intestate was riding did 'negligently veer off said public road at said place,' and as a proximate consequence of said combined and concurring negligence of defendants, plaintiff's intestate was injured to such an extent that he died.

Count 2 on which the case was tried is substantially the same as Count 3, except that instead of alleging that the barricade was constructed by defendant railroad 'along its property line' as in Count 3, plaintiff alleges in Count 2 that defendant railroad constructed a steel guard rail 'immediately South of the said easternmost edge of the paved portion of said highway and On the right of way thereof.' (Emphasis Supplied)

The demurrer to the complaint filed by defendant railroad contains forty-five separate and several grounds. In her original brief, appellant says:

'Assuming for the purpose of argument that defendants' demurrers contained every conceivable ground available, a close look at Count Three, as amended, is in order. . . .'

Appellant does not, however, in her briefs, set out in its terms or substance any ground of demurrer.

After appellee, defendant railroad, had noted in brief that appellant had failed to mention any ground of demurrer assigned to Count 3, appellant says in reply brief that the respective grounds of demurrer (referring to them by number merely) were argued on certain pages of her original brief, but appellant does not set out or mention the substance of any ground of demurrer. A careful reading of appellant's briefs leaves us uninformed as to the substance of any one of the forty-five grounds of demurrer. Appellant argues at length with respect to the duty of a railroad to maintain a crossing, the duty of a defendant not to create a dangerous condition, and the duty of a landowner who creates artificial conditions on his land, but the argument is not directed to any of the grounds of demurrer. Authorities are cited, but no ground of demurrer is mentioned in connection with any of the cited authorities.

In Illinois Cent. R. Co. v. Posey, 212 Ala. 10, 101 So. 644, this court said:

'The defendant filed 14 pleas to these counts. Plea 1 was the general issue, and the court sustained demurrers of plaintiff to the other 13 pleas. These rulings of the court are assigned as errors. The appellant in his brief refers to these 13 rulings of the court, and these 13 assignments of error as follows:

"Assignments of error 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17. These assignments of error have to do with the court's action in sustaining plaintiff's demurrers to defendant's pleas, which demurrers are on pages 19 and 20 of the transcript, and pleas on pages 16, 17, and 18.

"In order not to unduly lengthen this brief, we will not fully argue these demurrers, but respectfully insist that the pleas setting up defendant's various defenses are well drawn, and in fact practically copied from decisions of this court, and that the demurrers should have been overruled.'

'These assignments of error must be treated as waived, because appellant failed to insist on them by argument. They were not elaborated in brief. What is written thereon above by appellant is not sufficient to require this court to discuss and analyze each of the 13 pleas to see if any one is sufficient under the demurrers. No argument is presented, and no authority is cited to show the court erred in any of the rulings. These assignments of error will be disregarded and not discussed. Ga. Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158; Republic I. & S. Co. v. Quinton, 194 Ala. 126, 69 So. 604; W.U.T. Co. v. Benson, 159 Ala. 254, 48 So. 712.' (212 Ala. at 12, 101 So. at 646)

In Saliba v. Lunsford, 268 Ala. 307, 309, 106 So.2d 176, 177, this court said:

'The assignment of error challenging the action of the trial court in sustaining demurrers to the original bill is not argued and hence will not be considered. Rickman v. Rickman, 266 Ala. 371, 96 So.2d 674; Epperson v. Stacey, 266 Ala. 396, 96 So.2d 750.'

In other opinions, this court has said:

'. . . The trial court sustained appellee's demurrer to the replication. This action of the trial court was assigned generally as error on this appeal, but was not substantially argued. Therefore, we deem that this alleged error was waived. Supreme Court Rule 9, Rules of Practice, Title 7, Code of Ala. 1940, as Amended, and annotations thereto.' Melvin v. Franklin Life Ins. Co., 274 Ala. 671, 673, 151 So.2d 238, 239.

'If any ground of a demurrer is well taken, the action of the trial court in sustaining the demurrer must be upheld. Prather v. Ray, 258 Ala. 106, 112, 62 So.2d 46; Ledbetter v. Frosty Morn Meats, 274 Ala. 491, 495, 150 So.2d 365.

'By assigning for error that the court erred in sustaining the demurrer to Count Two-B, plaintiffs assert and, therefore, assume the burden of showing that all grounds of demurrer are bad, or, in other words, that no ground is a good ground. To support this burden, plaintiffs must argue each and every ground and demonstrate that each in bad. . . .' Butler v. Olshan, 280 Ala. 181, 189, 191 So.2d 7, 15.

The Court of Civil Appeals recently said:

'The single assignment of error questions the trial court's ruling sustaining the demurrer.

'. . .

'. . . Appellant does not argue each and every ground of the demurrer that was filed against his complaint as required; in fact, appellant does not argue any ground of said demurrer. With the case being in this posture we have no alternative but to say that appellant waived his single assignment of error for the reason that he failed to argue each and every ground of the demurrer that was sustained as to his complaint.' Freehling v. St. Paul and Marine Insurance Company, 49 Ala.App. 373, 272 So.2d 582, 583.

Under the authorities, supra, the judgment appealed from must be affirmed.

Application of other rules of review requires the same result. As already noted, plaintiff alleged in Count 2 that the barrier or guard rail was 'on the right of way' of the public road. In Count 3 plaintiff alleged that the barrier was 'along its property line.' As we understand plaintiff's argument, she says that Count 3 shows that the barrier was on land owned by the defendant railroad and...