Montgomery St. Ry. v. Mason

• Decision Date: 09 April 1902
• Citation: 133 Ala. 508,32 So. 261
• Parties: MONTGOMERY ST. RY. v. MASON. [1]
• Court: Alabama Supreme Court

32 So. 261

133 Ala. 508

MONTGOMERY ST. RY. v. MASON. ^[1]

Supreme Court of Alabama

April 9, 1902

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Action by James M. Mason against the Montgomery Street Railway. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.

This was an action brought by the appellee, James M. Mason against the appellant, the Montgomery Street Railway, to recover damages for personal injuries. The complaint contained three counts, in each of which the plaintiff claims $5,000 damages.

The first count of the complaint, after setting up the fact that the defendant was operating a street railway in the city of Montgomery, and that the plaintiff had taken passage upon one of the cars owned and operated by the defendant, then avers that the defendant received "said plaintiff as a passenger therein, to be carried through Hull street to a certain station near Julia street and opposite to a church known as 'Hull Street Methodist Church,' at or near Jenetta Ditch, sometimes called 'Boguehomo Ditch,' and that thereupon it then and there became and was the duty of the said defendant to use due and proper care that the said plaintiff should be carefully and securely carried and conveyed and propelled along the said railway as aforesaid (and to have provided a proper and sufficient place, light, and means and facilities whereon and whereby the plaintiff might have safely alighted at said station opposite said church near said ditch; yet the said defendant not regarding its duties in that behalf, did not use due and proper care in providing a proper and sufficient place light, and means and facilities to enable plaintiff safely to alight at said station opposite said church when the said car carrying plaintiff arrived there); by means whereof the said plaintiff, while attempting to alight or descend from the said car at said station, to wit, on the 6th day of August last aforesaid and at night, stepped and fell upon certain lumber and débris which had been negligently placed and permitted to remain at the place where plaintiff alighted from said car, and, by stepping or falling upon said lumber or débris, plaintiff fell upon the same, and was thereby greatly cut, bruised, and wounded, and divers members of his body were then and there greatly injured in so much that his right arm was paralyzed, and he then and there became and was very sick, weak, and disabled for a long period, to wit, from then to the commencement of this suit, and was thereby forced to pay a large sum of money for expenses incurred, to wit the sum of $1,000, in and about attempting to be cured of the bruises, weakness, and injuries occasioned as aforesaid, and suffered and underwent great mental and physical pain, and was hindered and prevented and is still hindered and prevented from performing the duties of his occupation, which amounted to a large sum of money, to wit, the sum of $5,000."

The second count of the complaint, after making the prefatory allegations as contained in the first count, then alleged that the defendant received "the said plaintiff as a passenger therein, to be carried through Hull street to a certain station near Julia street, and opposite to a church known as 'Hull Street Methodist Church,' at or near Jenetta Ditch, sometimes called the 'Boguehomo Ditch,' and that thereupon it then and there became and was the duty of the said defendant to use due and proper care that the said plaintiff should be carefully and securely carried and conveyed and propelled along the said railway as aforesaid (and to have provided a proper and sufficient place, light and means and facilities whereon and whereby the plaintiff might have safely alighted at said station opposite said church near said ditch; yet the said defendant, not regarding its duties in that behalf, did not use due and proper care in providing a proper and sufficient place light, and means and facilities to enable plaintiff safely to alight at said station opposite said church when the said car carrying plaintiff arrived there), but negligently and carelessly piled the lumber and débris of an old bridge on the public highway where defendant stopped said car for plaintiff to alight, by means whereof the said plaintiff, while attempting to alight or descend from the said car at said station, or the place where said car was stopped for plaintiff to alight, to wit, on the 6th day of August last aforesaid and at night, stepped and fell upon said lumber and débris which had been negligently placed and permitted to remain at the place where plaintiff alighted from said car, and, by stepping or falling upon said lumber or débris, plaintiff fell upon the same, and was thereby greatly cut, bruised, and wounded, and divers members of his body were then and there greatly injured in so much that his right arm was paralyzed, and he then and there became and was very sick, weak, and disabled for a long period," etc.

The third count of the complaint, after making the prefatory allegations and alleging that the plaintiff had taken passage on one of the cars operated by the defendant, then continues as follows: "And that thereupon it then and there became and was the duty of the said defendant to use due and proper care that the said plaintiff should be carefully and securely carried and conveyed and propelled along the said railway as aforesaid, and to be stopped at the usual and proper place provided for passengers to alight at said station opposite said church; yet the said defendant, not regarding its duty in that behalf, did not stop said car at the usual stopping place, where plaintiff could with safety have alighted from said car, although signaled by plaintiff in ample time to do so, but carelessly and recklessly ran said car beyond said regular stopping place a distance of about 30 feet, to a place where lumber and other obstructions were lying on the ground, and where there was no light to apprise plaintiff of the situation there, and then and there stopped said car in the midst of said lumber and other obstructions, when plaintiff, believing that said car had stopped at the usual and customary place for passengers to alight at said station, while attempting to alight from said car, to wit, on the night of August 6th, 1899, stepped and fell in and upon a pile of lumber or other material, over and among which the defendant had negligently and carelessly stopped said car, and, by stepping or falling upon said lumber or débris, plaintiff fell upon the same, and was thereby greatly cut, bruised, and wounded, and divers members of his body were then and there greatly injured in so much that his right arm was paralyzed, and he then and there became and was very sick, weak, and disabled for a long period," etc.

The defendant moved the court to strike from the first and second counts of the complaint the portions thereof which are in italics and which are in parentheses, upon the ground that said words as alleged in each of said counts were immaterial irrelevant, and surplusage. The defendant also moved to strike from the third count of the complaint the words "carelessly and recklessly," upon the ground that said words were immaterial, irrelevant, and surplusage. The court overruled each of these motions. Thereupon the plaintiff amended the first count by striking out the portion thereof which is included within the parentheses, and inserting in lieu thereof the following allegations: "And to provide a proper and sufficient place so that plaintiff might alight safely at said station; yet the defendant, not regarding its said duty, failed to provide a proper and sufficient place for plaintiff so to alight, and stopped its car on which plaintiff was a passenger as aforesaid at a point where certain lumber and débris were lying within a few feet of its track." The plaintiff also amended the second count by striking out the words "light and means and facilities," wherever they occur. The defendant demurred to the first count of the complaint upon the following grounds: (1) Because plaintiff does not show how or in what manner the defendant failed to use due and proper care in providing a proper and sufficient place to enable plaintiff safely to alight at said station; (2) because the complaint fails to show in said count that defendant placed said lumber and débris at the place where plaintiff alighted from said car; (3) because the complaint fails to show in said count any duty upon its defendant to have removed the lumber placed along the track at the place of the accident; (4) that there was no legal duty upon defendant to have provided a proper and sufficient place whereby the plaintiff might have alighted from said car; (5) because said count fails to show that defendant knew of the location of the lumber or débris at the point where plaintiff alighted from said car, or that such lumber or débris was there sufficiently long for defendant to have been informed thereof by the use of reasonable diligence on its part. The defendant demurred to the second count upon the same grounds of demurrer as interposed to the first count and upon the following additional grounds: (1) Because said count does not show that defendant did not carefully and securely carry and convey and propel the plaintiff along said railway; (2) because said count does not show how or in what respect the defendant failed to use due and proper care in providing a proper and sufficient place to allow plaintiff to alight from said car; (3) because the allegation in said count, "and to have provided a proper and sufficient place, whereon and whereby the plaintiff might have safely alighted at said station," is a mere conclusion of the pleader; (4) and the allegation that defendant did not...