Montgomery St. Ry. Co. v. Lewis

• Decision Date: 30 June 1906
• Citation: 41 So. 736,148 Ala. 134
• Parties: MONTGOMERY ST. RY. CO. v. LEWIS.
• Court: Alabama Supreme Court

41 So. 736

148 Ala. 134

MONTGOMERY ST. RY. CO. v. LEWIS.

Supreme Court of Alabama

June 30, 1906

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

"To be officially reported."

Action by T. L. Lewis against the Montgomery Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action by Lewis, a passenger, for damages for injury received in a collision between one of defendant's street cars and some Louisville & Nashville freight cars at a crossing on grade. The seventh count of the complaint is set out in the opinion. The fifth count is in words and figures as follows: "Plaintiff claims of the defendant, the Montgomery Street Railway Company, a corporation, $3,000 as damages, for this: that on, to wit, the 1st day of July 1904, the defendant was engaged in operating by electricity a street railway in the city of Montgomery as a common carrier of passengers, and one of the tracks owned, used, or operated by the defendant crossed a railroad track in what is known as 'Vesuvius,' in said city, and the servant, agent employé, motorman, or conductor in charge of one of defendant's cars, and upon which plaintiff was a passenger, knew that a railroad car was being operated upon said railroad track, and that to run said street car upon the said railroad crossing would naturally and probably result in a collision between the said car upon which plaintiff was a passenger and a railroad car, locomotive, or train, and notwithstanding such knowledge, and the probable and natural result of going upon the railroad track, the said servant agent, employé, motorman, or conductor of the defendant, with a present consciousness that injury to plaintiff would probably result, wantonly or willfully ran said car upon which plaintiff was a passenger upon the said railroad track and it collided with the railroad car or train, and by reason of the willful or wanton conduct on the part of the servant agent, employé, motorman, or conductor of defendant the plaintiff was greatly injured, his hip was injured, his head was injured, his back was injured, his arm was injured, his body was bruised, he was otherwise injured, he was internally injured, his hearing was impaired, he was permanently injured, he suffers and continues to suffer much mental anguish and physical pain, and was put to great expense in employing a doctor and buying medicines, and was prevented from tending to his business, all to his great damage." The eight count is the same as the fifth count down to the words "willfully or wantonly," where they occur therein. The averment which follows is: "Willfully or wantonly stop said car upon the said track of the railroad, knowing at the time thereof that his action in so stopping said car upon said railroad track would probably result in disaster, and plaintiff further avers that a train of cars on said railroad track collided with the same car upon which plaintiff was a passenger, and thereby the said car upon which plaintiff was a passenger was violently thrown from said track and plaintiff was greatly injured." The injuries alleged are the same as in the fifth count. The facts are sufficiently stated in the opinion, as are the demurrers.

There were a number of charges requested, but it is only necessary here to set out the following: Charge 12: "The court charges the jury that it was the duty of the operator in charge of the train of cars on the Seaboard Air Line Railway to have brought their train to a full stop before attempting to cross defendant's track, and the operatives of defendant's street car had the right to assume that the said train of cars would be so stopped, and to act on that assumption, unless the facts and circumstances were such as to reasonably indicate that said train would not be stopped." Charge 13: "The court charges the jury that there was no duty upon the operatives in charge of the street car which collided with the train of cars on the occasion testified about to bring said car to a full stop before crossing the railroad there, unless they knew or had reasonable cause to know that a train was approaching." The twelfth assignment of error is in the following language. "The court erred in sustaining plaintiff's objection to the question asked the witness Watts by defendant's counsel: 'What the plaintiff said in reference to the railroad company at the time of the accident?' Defendant's counsel stated that the evidence asked for by the question was part of the res gestæ, and that he expected to show that the plaintiff then and there remarked that the railroad company, referring to the steam road, ought to pay some damages." There was verdict and judgment for $150.

Steiner, Crum & Weil, for appellant.

Hill, Hill & Whiting, for appellee.

DENSON J.

Action by T. L. Lewis, plaintiff, against the Montgomery Street Railway Company, defendant, to recover damages on account of personal injuries alleged to have been received by the plaintiff while a passenger on one of the defendant's street cars, in a collision which occurred between said car and a freight train of the Louisville & Nashville Railroad Company at a point on Chandler street in the city of Montgomery where the street railway of the defendant and the railroad of the Seaboard Air Line Railway cross each other at grade. The plaintiff obtained a judgment in the city court, and the defendant appealed.

The complaint is composed of ten counts. Demurrers were filed to each count, all of which were overruled by the court. The action of the court in overruling the demurrers to the complaint is assigned as error, but the only assignments in this respect which have been insisted upon in the argument of appellant's counsel are those which relate to the fifth seventh, and eight counts. The seventh count is in this language: "Plaintiff claims of the defendant, the Montgomery Street Railway Company, a corporation, $3,000 damages, for this: that on, to wit, the 1st day of July, 1904, the defendant was engaged in operating by electric force a street railway as a common carrier of passengers in the city of Montgomery, and one of the lines owned, used, or operated by the defendant ran into what is known as 'Vesuvius,' and crossed a railroad track in said Vesuvius, and plaintiff avers that the motorman, agent, servant, or employé in charge of one of the defendant's cars upon which plaintiff was a passenger then and there negligently ran said car upon the said railroad crossing without first knowing that said track was clear; that by reason of such negligence, the plaintiff was injured," etc. The foregoing is sufficient of said count to present intelligibly the question raised by the demurrer. The point of the demurrer is that the averment of negligence is insufficient on account of its generality. That the averment that the motorman negligently ran said car upon the said railroad crossing without first knowing that said track was clear is the averment merely of a conclusion. The argument with respect to this last point is that the averment was an attempt to particularize the negligence, and where this method is resorted to sufficient facts should be stated from which the court would be able to determine that the defendant was guilty of negligence. Without the use of the words, "without first knowing that said track was clear," in said...