Louisville & N.R. Co. v. Marbury Lumber Co.

• Decision Date: 17 January 1900
• Citation: 125 Ala. 237,28 So. 438
• Parties: LOUISVILLE & N. R. CO. v. MARBURY LUMBER CO.
• Court: Alabama Supreme Court

28 So. 438

125 Ala. 237

LOUISVILLE & N. R. CO. v. MARBURY LUMBER CO.

Supreme Court of Alabama

January 17, 1900

Appeal from circuit court, Autauga county; N. D. Denson, Judge.

Action by the Marbury Lumber Company against the Louisville &amp Nashville Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This action was brought by the Marbury Lumber Company against the Louisville & Nashville Railroad Company. The complaint contained three counts, which were as follows: "(1) Plaintiff claims of defendant the sum of twenty-five hundred dollars ($2,500) as damages, for that heretofore, to wit, the 13th day of January, 1897, the defendant negligently set fire to and destroyed, to wit, seventy bales of cotton, the property of the plaintiff, located on the premises of the plaintiff, of the value, to wit, twenty-five hundred dollars ($2,500), to plaintiff's great damage as aforesaid. (2) The plaintiff claims of the defendant the further sum of twenty-five hundred dollars ($2,500) for that heretofore, to wit, on the 13th day of January, 1897, the defendant negligently set fire to and destroyed, to wit, seventy (70) bales of cotton, the property of the plaintiff, of the value of, to wit, twenty-five hundred dollars, to plaintiff's great damage as aforesaid. (3) The plaintiff claims of defendant the further sum of twenty-five hundred dollars ($2,500) as damages, for that heretofore, on, to wit, 13th day of January, 1897, the defendant, by the negligence of its agents and servants who were then and there engaged in the operation of a train of cars and engine upon defendant's railway track at Bozeman, Alabama, negligently threw from said engine sparks which set fire to cotton, the property of plaintiff, of the value, to wit, twenty-five hundred dollars ($2,500), and by means thereof destroyed, to wit, seventy (70) bales of cotton, to the plaintiff's damage in the sum aforesaid." To the first and second counts of this complaint the defendant demurred upon the following grounds "(1) Said counts fail to show wherein the alleged negligence consisted. (2) Said counts merely state the conclusion of the pleader. (3) No facts are shown which constitute negligence." To the third count the defendant demurred upon the following grounds: "(1) Said count states the conclusion of the pleader. (2) Because it is not shown how or in what manner the agents or servants of the defendant were guilty of negligence in the premises. (3) Because it is not averred or shown hat the engine or cars were negligently handled." These demurrers were overruled, and the defendant separately excepted. The defendant then pleaded the general issue and the plea of contributory negligence, and the cause was tried upon issue joined upon these pleas. The other facts of the case are sufficiently stated in the opinion. The court, in its general oral charge to the jury, instructed them, among other things as follows: "If you find that the cotton was burned on account of the negligent act of the defendant, then your verdict should be for the plaintiff." The defendant duly excepted to the giving of this portion of the court's general charge, and also separately excepted to the court's refusal to give, among others, the following written charges requested by it: "(1) If the jury believe the evidence, they must find for the defendant. (2) The court charges the jury that it was negligence for the plaintiff to pile the cotton near the track of the defendant as shown by the testimony in this case. (3) the court charges the jury that if they believe from the evidence that the cotton was piled in a pen without any covering of any kind, and without any watchman, then this was contributory negligence on the part of the plaintiff, which will defeat a recovery, and they must find for the defendant." "(7) The court charges the jury that the fact that the cotton was fired by sparks from defendant's engine does not, under the circumstances of this case, raise any presumption of negligence on the part of the defendant. (8) The court charges the jury that evidence which merely tends to show that the fire originated from sparks from the engine is not of itself sufficient to shift the burden of proof upon the defendant to show that its appliances for the escape of sparks and the manner of its train was free from negligence. (9) It being a matter of common knowledge that cotton is one of the most inflammable materials known, required an ordinary degree of caution and diligence on the part of the plaintiff; and plaintiff having failed in this, by reason of no protection, such as a covering or guard, being provided, or acting in the premises as an ordinarily prudent man would act under the circumstances, then this would prevent a recovery by the plaintiff. (10) If the jury believe from the evidence that the plaintiff was guilty of such negligence in piling the cotton in the manner proved, and allowing it to remain there the length of time it did, then this would be such negligence on the part of the plaintiff as would defeat its right of recovery." "(12) The court charges the jury that, even if the evidence tends to show that the fire caught from sparks from an engine, yet the jury cannot infer that the sparks were negligently emitted, and, unless they find from the evidence that the sparks escaped from engine 294 in dangerous and unusual quantities, then they must find for the defendant." "(16) The court charges the jury that it is a matter of common knowledge that sparks from locomotives, no matter how well constructed, or in what condition, or how carefully handled, escape in more or less quantities; and, while such evidence may tend to show that the fire was caused by such sparks, it does not show that they were not emitted in the ordinary, natural operation of the engine." There was verdict in favor of the plaintiff, assessing its damages at $2,358. The plaintiff, however, consented that the recovery should be reduced to $2,218, and judgment was accordingly rendered for this amount. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Thos. G. Jones, Chas. P. Jones, and A. C. Birch, for appellant.

Watts, Troy & Coffey, for appellee.

TYSON J.

The complaint contains three counts. Counts 1 and 2 are substantially the same. They are no more than legal conclusions. Not a single fact is alleged in either out of which any duty arose or was owing on the part of the defendant to the plaintiff, nor in what the breach of duty consisted upon which the plaintiff predicates the defendant's negligence. It would be difficult to frame a count more general, and containing less information to the defendant as to what it is required to defend against, than these. As to whether the plaintiff complains of the defendant for the negligent destruction of its cotton while the cotton was in transitu, in the warehouse of the defendant, upon the platform of defendant's station house, on the right of way of the defendant, or on the premises of the plaintiff count No. 2 does not inform us. Furthermore, by what means or through what agency the fire was communicated to plaintiff's cotton is also a matter of conjecture. Whether by sparks emitted from a passing engine, which directly set fire to the cotton, or to some inflammable substance upon the defendant's right of way, and thereby communicated to the cotton, or whether by carelessness of some one in charge of the station the house or platform of the defendant was destroyed by fire, which burned the cotton, or by the carelessness of some agent or servant of defendant in the handling of a lighted lamp, candle, match, or torch he communicated the fire to the cotton, we are not informed, as we have said, by either of these counts. It requires no argument to show that the defendant would be at a serious disadvantage if required to take issue upon a complaint couched in such broad language as that affords it no information whatever as to the act of nonfeasance or misfeasance complained of. If the fire was communicated to the cotton in either of the ways suggested, and of which the plaintiff would have the right to make proof if issue was taken upon the counts, the character of the evidence required of the defendant to rebut the contention would be materially and entirely different. Should plaintiff rely upon a destruction of the cotton by means of sparks from a passing engine, the question of the proper construction or handling of the engine would be the issue. Should it rely upon the destruction of the cotton by the careless handling of a lighted lamp, candle, match, or torch by the agent or servant of the defendant, the issue would be radically different. The pleadings must be as brief as is consistent with perspicuity and the presentation of the facts or matter to be put in issue, in an intelligible form. No objection can be allowed for defect of form, if facts are so presented that a material issue in law or fact can be taken by the adverse party. Code, § 3285. In Ph nix Ins. Co. v. Moog, 78 Ala. 301, this court said: "Precisely the same principle applies to averments of negligence, whether urged by way of defense or in maintenance of an action. It is not sufficient to aver mere conclusions of law. The facts must be averred from which the conclusion of negligence is deducible." After quoting this rule, Justice Clopton, in Railway Co. v. Chewning, 93 Ala. 26, 9 So. 459, said: "This rule has been relaxed from necessity in cases where the cause of action consists in the nonperformance or misperformance of 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...