Railway Exp. Agency v. Burns

• Decision Date: 24 November 1950
• Docket Number: 6 Div. 745
• Citation: 255 Ala. 557,52 So.2d 177
• Parties: RAILWAY EXPRESS AGENCY, Inc., et al. v. BURNS.
• Court: Alabama Supreme Court

Page 177

52 So.2d 177

255 Ala. 557

RAILWAY EXPRESS AGENCY, Inc., et al. v. BURNS.

6 Div. 745.

Supreme Court of Alabama.

Nov. 24, 1950.

Rehearing Denied May 10, 1951.

E. L. All, W. B. White, Jr., and White, Bradley, Arant & All, all of Birmingham, for appellant Railway Express Agency.

Chas. H. Eyster, of Decatur, White E. Gibson, White E. Gibson, Jr., and Gibson & Gibson, all of Birmingham, for appellant Louisville & Nashville R. Co.

Taylor, Higgins, Koenig & Windham and J. Howard Perdue, Jr., of Birmingham, for appellee.

The count of the complaint upon which the case was tried is as follows:

'Plaintiff claims of the defendants the sum of Fifty Thousand Dollars ($50,000.00) as damages, for that on, to-wit, the 10th day of July, 1945 the defendant, Louisville & Nashville Railroad Company, a corporation, was engaged in the business of operating a railroad for the carriage of passengers and freight for a reward, and on, to-wit, said date in and about the conduct of said business used a station or depot in the City of Decatur, Alabama for the embarking and disembarking of passengers of said defendant Louisville & Nashville Railroad Company, a corporation; and plaintiff further avers that passengers of said defendant and persons accompanying such passengers were invited by said defendant to use the platform of said station or depot in Decatur, Alabama on said date; that on, to-wit, said date the defendant, Railway Express Agency, Inc., a corporation, was engaged in the business of transporting personal property and other articles from place to place for a reward, and on, to-wit, said date used said station or depot in and about the conduct of its business in the City of Decatur, Alabama, and conveyed personal property delivered to it for transportation on certain trains of the defendant, Louisville & Nashville Railroad Company, a corporation operating to and through the City of Decatur, Alabama; that on, to-wit, said date the defendant, Dewey Hardin was the servant, agent or employe of the defendant Railway Express Agency, Inc., and was engaged in the performance of the duties of his said employment by the defendant, Railway Express Agency, Inc. at said station or depot at the time of plaintiff's injury; that on, to-wit, said date, while plaintiff was in said station or depot in the City of Decatur, Alabama and on the platform thereof, and immediately after plaintiff had accompanied and assisted his wife, Mrs. Dena Burns, to one of the coaches of the defendant, Louisville & Nashville Railroad Company, a corporation and immediately after said Mrs. Dena Burns had boarded or embarked on one of the trains of the defendant, Louisville & Nashville Railroad Company, a corporation as a passenger, and while plaintiff was on said platform by invitation of the defendant, Louisville & Nashville Railroad Company, a corporation, he was injured and damaged as complained of and set out in Count 1 of his complaint.

'And plaintiff avers that all of his said injuries and damages were caused as a proximate result of the negligence of the defendants in causing or allowing a heavy object which was then and there being unloaded from a train of the defendant, Louisville & Nashville Railroad Company, a corporation at said station or depot to strike the plaintiff at said time and place.'

LAWSON, Justice.

This is a suit by Van Burns against Railway Express Agency, Inc.; Dewey Hardin, an employee of Railway Express Agency, Inc.; and Louisville & Nashville Railroad Company, to recover damages for injuries claimed to have been suffered by plaintiff at the railway station in Decatur, Alabama, which injuries plaintiff averred proximately resulted from the negligence of defendants in causing or allowing a heavy object to strike him, which object was then and there being unloaded from an express car of the train of the railroad company.

The jury returned a verdict against the defendant Louisville & Nashville Railroad Company, hereinafter referred to as the Railroad Company, and against the defendant Railway Express Agency, Inc., hereafter referred to as the Express Agency. The verdict was in favor of the defendant Dewey Hardin. Judgment was in accord with the verdict.

Their motions for new trial having been overruled, the Railroad Company and the Express Agency have appealed to this court.

Assignments of error are several and joint. Upon submission, there was an order for a severance in the assignments of error.

The case went to the jury on only one Count. The first three assignments of error challenge the action of the trial court in overruling the demurrers of the appellants to that Count. As we understand the brief filed on behalf of appellants, the only grounds of the demurrer insisted upon are those taking the point that the complaint fails to aver such duty of care as would render them liable for simple negligence.

As to the duty of care owing by the defendant Railroad Company to the plaintiff, the Count not only alleges in terms that the plaintiff was an invitee of that defendant, but it alleges sufficient facts to show that he was in fact such an invitee at the time he was injured, in that it alleges, in substance, that plaintiff was injured while on the platform of the railway station used by the said defendant and that such injury occurred immediately after plaintiff had assisted his wife to board one of the said defendant's trains, for which purpose plaintiff went to the station. Montgomery & Eufaula Ry. Co. v. Thompson, 77 Ala. 448; Sims v. Warren, 248 Ala. 391, 27 So.2d 803; Southern R. Co. v. Bates, 194 Ala. 78, 69 So. 131, L.R.A. 1916A, 510; Trust Co. of Chicago v. New York Central R. Co., 285 Ill.App. 482, 2 N.E.2d 362. Hence, the count contains averments sufficient to show that the defendant Railroad Company owed plaintiff the duty of exercising reasonable and ordinary care not to injure him; or otherwise expressed, the count avers a relationship that would render the said defendant liable for simple negligence. Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388.

The use of the station platform by the Railroad Company placed upon it the same duty to those persons there by its invitation as if it had owned the station. Montgomery & Eufaula Ry. Co. v. Thompson, supra.

It is not alleged in the complaint that plaintiff was an invitee of the defendant Express Agency, but it is alleged that the said defendant at the time of the injury was using the station premises in and about the conduct of its business. While the complaint shows the Express Agency had the right to conduct its business at the station and on the platform thereof, it also sufficiently avers that plaintiff was where he had a right to be as the invitee of the defendant Railroad Company; hence, the defendant Express Agency is shown to have had the duty to exercise reasonable and ordinary care not to injure plaintiff by its negligence. Wells Fargo & Co. v. Lowery, Tex.Civ.App., 197 S.W. 605, 608.

The defendant Railroad Company requested the following charge: 'I charge you gentlemen of the jury if you believe the evidence you will return a verdict for the defendant, Louisville and Nashville Railroad Company.'

The Express Company requested an identical charge.

The trial court's action in refusing these charges is assigned as error and strenuously insisted upon in brief.

Counsel for appellee insist that the charges were not in proper form and for that reason alone were refused without error, citing in support of their insistence the following cases: Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247; Southern Ry. Co. v. Alsobrook, 223 Ala. 540, 137 So. 437; May v. Draper, 214 Ala. 324, 107 So. 862; Boshell v. Cunningham, 200 Ala. 579, 76 So. 937; Goldstein v. Leake, 138 Ala. 573, 36 So. 458; Life & Casualty Ins. Co. v. Harris, 18 Ala.App. 667, 94 So. 185. These cases do hold that charges similar in form to those here under consideration were refused without error, not being in proper form, but in each of these cases except the one last cited it appears that there was more than one count in the complaint. The cases have no application here, where there is only one count. The distinction and the reason therefor is pointed out in the following excerpt from the opinion in Mobile & Ohio R. R. Co. v. George, 94 Ala. 199, 10 So. 145; 'While some of the charges, such as 1, 3 and 4, assert correct legal propositions, they conclude with a direction to 'return a verdict in favor of defendant' under the special and separate count in reference to which they are framed. The complaint, as amended, contains six counts, as to each of which a similar charge was separately asked. Had there been but one count, or, being several, had the charge upon the effect of the evidence applied to the whole complaint, there could be no objection to such conclusion of the charge, but, when there are two or more counts, the phraseology is subject to criticism. It is calculated to impress the jury with the idea that a separate verdict must be returned as to each count, though under some they may find for the plaintiff. Its tendency is to mislead or confuse, and requires explanation. * * *' (Emphasis supplied.) 94 Ala. 222, 10 So. 154.

For cases to like effect see Polytinsky v. Johnston, 211 Ala. 99, 99 So. 839; City of Birmingham v. Poole, 169 Ala. 177, 52 So. 937.

Appellants insist that each of them was entitled to have the jury instructed as was requested in the charges referred to above for three reasons: first, that the evidence failed to establish the allegation in the complaint that at the time plaintiff was injured he was an invitee of the defendant Railroad Company, and that such proof under the averments of the complaint was essential in order for him to recover against either of them; second, that the evidence failed to establish that either of appellants was guilty of any negligence; third, that plaintiff was guilty of contributory...