Southern Ry. Co. v. Dickson, 6 Div. 794.

CourtSupreme Court of Alabama
Citation211 Ala. 481,100 So. 665
Docket Number6 Div. 794.
Decision Date10 April 1924

100 So. 665

211 Ala. 481


6 Div. 794.

Supreme Court of Alabama

April 10, 1924

Rehearing Denied June 19, 1924.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages by H. T. Dickson against the Southern Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed conditionally.

Verdict for $50,000 for compound fracture of both femurs, resulting in five operations and confinement in hospital for 53 weeks and to bed for about 6 months thereafter, permanent disfigurement, and partial crippling for life, expenditure of $4,000 for treatment, and loss of $150 per month in earnings, held excessive by $20,000. [100 So. 667]

Count 2, upon which the cause was tried, is as follows:

"Plaintiff claims of defendant the sum of $100,000, for that, on, to wit, June 3, 1920, plaintiff was in the service and employment of defendant, and was upon a car which was then and there being used in interstate commerce, and plaintiff was at the time in the employment of defendant in interstate commerce and engaged in the performance of his duties for defendant while such defendant was engaged in commerce between the states of Alabama and Tennessee, and plaintiff was aiding in his employment for defendant in such commerce between the states, and, while plaintiff was engaged in the said performance of his duties for defendant, as aforesaid, he was upon a car, upon a railroad track, which said car was attached to a train of cars pulled by an engine, and in the performance of his duties for defendant it was necessary for plaintiff to be on said car while the said train was in motion, and while the train was in motion as aforesaid, and plaintiff was on said car the train and car on which plaintiff was riding gave a sudden, violent, unusual, and extraordinary jerk, throwing plaintiff to the ground, breaking both of his legs severely bruising and injuring him on other parts of his body, causing him great physical pain and mental anguish causing him to lose much time from his labors and the remuneration he would have received therefor, permanently crippling and deforming plaintiff, and rendering him less able to earn a livelihood for the balance of his life, causing him to spend large sums for nursing, medicine, and medical treatment, and so injuring his body that he will continue to be compelled to spend money for nursing, medicine, and medical treatment. Plaintiff further avers that all of his said injuries and damages were proximately caused by the negligence of the engineer, one Ledford, then and there in charge and control of the engine pulling the train of cars, and acting in the line and scope of his duties as [100 So. 668] such engineer for the defendant, in that said engineer so negligently operated said engine that plaintiff was injured as aforesaid."

Smith, Wilkinson & Smith, of Birmingham, for appellant.

Black, Harris & Foster and James G. Davis, all of Birmingham, for appellee.


Of the numerous grounds of demurrer to the complaint only three are now insisted upon. These are: (1) The complaint does not show that the defendant railroad company is a common carrier. (2) It does not show any breach of duty owed to plaintiff, inasmuch as it charges as negligence an act which is not negligent unless the engineer knew, or should have known, that plaintiff was in a place of peril at the time with reference to the act, no such allegation being made. (3) It does not show that immediately at the time of his injury plaintiff was engaged in the performance of the service he was employed to do.

The first objection is, of course, founded on a basic requirement, since the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) under which this action is brought relates only to common carriers by railroad, engaged in interstate or foreign commerce. Second Employers' Liability Cases, 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L. R. A. (N. S.) 44; Bay v. Merrill, etc., Co. (D. C.) 211 F. 717; Shade v. N. P. Ry. Co. (D. C.) 206 F. 353.

That the Southern Railway Company is a common carrier is a fact of such general notoriety that courts may judicially know it, whether as a factor in pleading or in proof. B. & O. R. R. Co. v. Reed (C. C. A.) 223 F. 629; State v. M. P. Ry. Co., 212 Mo. 658, 111 S.W. 500; A. G. S. R. R. Co. v. Smith, 209 Ala. 301, 96 So. 239. But, apart from the general principle of judicial knowedge, we know the character and service of this company from the Constitution and statutes of Alabama. Const. Ala. § 242; Code 1907, § 5566; Gen. Acts 1907 (Special Sess.) 125. The Constitution makes all railroad companies in this state common carriers, and the statutes referred to classify this defendant as such by name.

Whether in any case a complaint under the federal act should show that the defendant railroad company is a common carrier we need not here determine. If such a showing be necessary as a general rule, judicial knowledge dispenses with it in the instant case, and the omission of allegation was not an available ground of demurrer. A. G. S. R. R. Co. v. Cardwell, 171 Ala. 274, 55 So. 185.

Upon a review of our cases dealing with the liability of railroad companies for injuries caused by jars or jerks in the operation of their trains we have recently said:

"These cases indicate that the production of sudden jars or jerks in the movement of trains may be held as negligent only when they are violent enough to naturally and probably result in injury to some one on the train who is known to be, or to probably be, in a position of peril from such a movement; and when they are unnecessary under the circumstances of the particular case." S. L. & S. F. R. R. Co. v. Dorman, 205 Ala. 609, 89 So. 70.

Our cases very clearly support the proposition that, when the act which caused the injury is specified, and is not negligent in itself, but only when the actor was chargeable with knowledge that some one was in a position of peril with respect to consequences, no breach of duty is shown without an allegation that the actor had such knowledge or was so chargeable. L. & N. R. R. Co. v. Bouldin, 110 Ala. 185, 200, 20 So. 325; W. U. T. Co. v. Howington, 198 Ala. 311, 73 So. 550; Mobile, etc., Co. v. Bell, 153 Ala. 90, 93, 94, 45 So. 56. See, also, So. Ry. Co. v. Carter, 164 Ala. 103, 107, 108, 51 So. 147, wherein the principle is well discussed, though not raised as a matter of pleading.

This, of course, does not deny the rule that negligence may be sufficiently alleged in very general terms. But negligence comprehends and rests upon a breach of duty; and, when the injurious act is specified, it must be made to appear, either from the nature of the act, or from the accompanying circumstances, that a duty existed of which the act complained of was a breach. We think the complaint was subject in this respect to the apt ground of demurrer interposed.

We cannot, however, for this cause, reverse the judgment, for the reason that the omitted allegation was nevertheless made an issue on the trial, and the jury were clearly and specifically instructed (by charges 20, 22, and 23) that plaintiff could not recover unless he showed that the engineer operating the train "knew, or in the exercise of reasonable care ought to have known, that the plaintiff was in or would probably be in a position of peril at the time the jerk and shock was caused, if it was caused." Under the rule declared in Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, and a long line of cases following it, the error in overruling the demurrer must be held as cured by the clear instructions requiring proof of the omitted allegation. That such a complaint states a cause of action, notwithstanding the omission of this allegation, was held in Southern Ry. Co. v. Carter, 164 Ala. 103, 51 So. 147.

As for the third objection to the complaint, while we are not insensible to the ingenuity of its reasoning, we think it is too artificial and refined to deserve judicial [100 So. 669] favor. It was necessary for the complaint to show not only that plaintiff was injured while in the service or employment of defendant, but also that he was injured while engaged in the performance of the service he was employed to do, or which was imposed upon him by his employment. St. L. & S. F. R. R. Co. v. Dorman, 205 Ala. 609, 89 So. 70, and cases therein cited.

An analysis of the complaint in this case will show that it fairly meets this requirement, though its syntax is certainly subject to criticism.

The case of S. L. & S. F. R. R. Co. v. Sutton, 169 Ala. 389, 55 So. 989, Ann. Cas. 1912B, 366, strongly relied on by appellant in this connection, can be readily distinguished from the instant case. There the complaint alleged merely that plaintiff "was upon said train engaged in or about the said business of defendant [i. e., operating an engine and train on its railway]." It did not allege that plaintiff was engaged in the performance of his own duties, and for that reason it was held as subject to the demurrer. In sharp contrast, the complaint here alleges that plaintiff "was engaged in the performance of his duties for defendant"-a very vital difference. It is not necessary in such a complaint to show what special service the plaintiff was employed to do, the essential fact being the concurrent performance of the service, whatever it may have been.

Counsel misconceive the ruling in Going v. Southern Ry. Co., 192 Ala. 665, 69 So. 73. The brief exhibits amended count 6, as to which no question was raised, whereas the excerpt from the opinion is condemnatory of the original count.

In Adams v. Southern Ry. Co., 166 Ala. 449, 51 So. 987, the complaint alleged no more than that plaintiff's intestate was injured while "in the service or employment of defendant as...

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