Mobile Light & R. Co. v. Therrell

• Decision Date: 21 April 1921
• Docket Number: 1 Div. 144
• Parties: MOBILE LIGHT & R. CO. v. THERRELL.
• Court: Alabama Supreme Court

88 So. 677

205 Ala. 553

MOBILE LIGHT & R. CO. v. THERRELL.

1 Div. 144

Supreme Court of Alabama

April 21, 1921

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action by Wade H. Therrell, against the Mobile Light & Railroad Company, for damages for injuries as a passenger while alighting from a street car of the defendant. Judgment for the plaintiff, and the defendant appeals. Reversed and remanded.

Harry T. Smith & Caffey, of Mobile, for appellant.

Smiths Young & Lee, of Mobile, for appellee.

SOMERVILLE J.

The first count of the complaint is manifestly intended to charge a breach of defendant's duty to plaintiff, in that defendant's street car was stopped, and plaintiff was invited to alight therefrom, at a place not safe and convenient for that purpose.

It is shown that plaintiff was a pay passenger on defendant's car, his destination being the village of Prichard; and the averment is that--

"When said car reached Prichard it was, by the servants in charge thereof, stopped at a point where there was no platform, and where the ground was irregular and rough, and a considerable distance below the last step of said car, and where it was dangerous for a person on crutches to alight and when plaintiff, at the invitation of the defendant attempted to alight from said car, the irregularities of the ground, and its distance below the step of the car from which plaintiff had to alight, caused him to fall and to break one of his legs at a point above the knee."

It is further averred that--

"Defendant negligently stopped its said car at said point, and invited plaintiff to there leave the car, and that plaintiff's injuries were the proximate result of the defendant's said negligence."

It is the duty of common carriers of passengers, including street railways, to exercise the highest degree of care in providing reasonably safe and convenient places for the disembarkation of their passengers. Montgomery St. Ry. Co. v. Mason, 133 Ala. 508, 527, 32 So. 261; Mobile, etc., R. Co. v. Walsh, 146 Ala. 295, 40 So. 560; 10 Corp.Jur. 924 (§ 1348); Id. 944 (§ 1363). And when a train or car stops at any place other than a regularly appointed station or stopping place, and passengers are there expressly or impliedly invited to alight, it is the carrier's duty to select a place that is reasonably safe and convenient, and it is its further duty, acting through its servants in charge, to know whether the place selected is of such a character. 10 Corp.Jur. 914 (§ 1340); Id. 939 (§ 1360); Mobile, etc., R. Co. v. Walsh, 146 Ala. 295, N.B. Ry. Co. v. Liddicoat,

99 Ala. 545, 13 So. 18. And if, nevertheless, there is danger to an alighting passenger from obstructions, or surface inequalities, or other sources, not known to him and not plainly open to his observation, and of which the carrier's servants are bound to take notice, it is the duty of the latter to warn the passenger of the danger. 10 Corp.Jur. 925 (§ 1349).

A complaint counting upon a breach of the carrier's duty to stop at a reasonably safe and convenient place for an invited disembarkation of its passengers must either charge in terms that it stopped at a place that was not reasonably safe or convenient, or else it must state facts from which that conclusion follows as a matter of law. 10 Corp.Jur. 1006 (§ 1412); Montgomery St. Ry. Co. v. Mason, 133 Ala. 508, 32 So. 261.

The first count of the complaint is without averment as to the unsafety or inconvenience of the place at which defendant's car stopped, and at which plaintiff was injured in the course of his disembarkation, except only that it "was dangerous for a person walking on crutches," and there is no averment that plaintiff was walking on crutches. Manifestly, there was no duty resting on defendant to make stop and invite disembarkations only at places which were safe for persons "walking on crutches." Construing the complaint more strongly against the pleader, the stated conclusion that the place was dangerous for persons "walking on crutches" must be taken as a negation of danger for persons normally conditioned, and hence there is a failure to show a breach of defendant's legal duty in the premises.

But if we disregard the qualifying conclusion referred to, and look to the statement of physical conditions at the stopping place, upon which the charge of negligently stopping at that point is based, it seems clear that the count is defective in its conclusion of negligence thereon. Certainly the absence of a platform, the fact that the ground was "irregular and rough," and the fact that the ground was "a considerable distance below the last step of the car," cannot, either separately or in combination, support the legal conclusion that the place was not safe for disembarkation. Where facts are stated which are of equivocal significance, the pleader is required, as against an apt demurrer, to color the facts by charging the conclusion relied on. Here the descriptive terms as to the nature of the ground, and its distance below the step, are relative only, and are too vague and uncertain of import to sustain the required conclusion. This objection to the count was pointed out by appropriate grounds of demurrer, and as for that the demurrer should have been sustained, and was erroneously overruled.

Plaintiff's evidence tended to show that as a proximate result of his broken leg, and of its protracted treatment in a hospital, his bladder became infected, resulting in chronic functional disorder and severe pain and inconvenience; and with respect to that injury the trial judge, at plaintiff's request, instructed the jury as follows:

"If the suppression of plaintiff's urine is in part the result of infection caused in the course of his treatment of the injuries to his leg, then plaintiff, if entitled to recover anything, may recover for his suffering and disability, if any, resulting therefrom."

The complaint, under which such damages were thus expressly allowed to be recovered, contained only the following allegations of injury:

"*** Caused him to fall and to break one of his legs at a point above the knee, and from the injuries so received he has suffered, and will continue to hereafter suffer, greatly in body and mind, and has lost and will continue to lose much time, and he has been permanently injured and disabled. [ Italics ours.] It will be observed that the only injury averred is a broken leg, and that the only consequential damage averred is predicated upon that specific injury. The physical and mental suffering, loss of time, and permanent disability, for which damages are specially claimed, are attributed solely and specifically to the broken leg as their causa causans; no other hurt being shown. Nor is there any general averment of bodily injury, direct or consequential.

"Special damages are such as result naturally but not necessarily from the wrong complained of. *** It is a familiar rule of pleading that, before such damages can be recovered, they must be specially alleged, to the end that the defendant,

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