Southern Ry. Co. v. Burgess

Decision Date18 May 1905
Citation42 So. 35,143 Ala. 364
PartiesSOUTHERN RY. CO. v. BURGESS.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"To be officially reported."

Action by Cora Burgess against the Southern Railway Company, for injuries received while a passenger on a freight train of defendant. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint, after stating that the relation of passenger and carrier existed, alleges: "The defendant so negligently conducted itself in and about such business that, while plaintiff was engaged in and about disembarking from said train at North Birmingham, said train was struck, shaken, or jolted, and plaintiff was thrown or caused to fall," etc. Demurrers of defendant are indicated by the opinion. These being overruled, issue was joined on the general issue and four pleas of contributory negligence. The evidence for the plaintiff tended to show that she took passage on a freight train operated by the defendant, occupying a seat in the caboose, which was attached thereto for carrying passengers. That, on coming to North Birmingham, her destination, the train stopped; the engine being beyond the station, and the caboose about 100 yards therefrom. That the conductor and other passengers left the caboose, and plaintiff's husband looked out and saw that the engine was detached, and plaintiff prepared to leave, and while standing gathering up her bundles, there was a jar or lurch of the car, causing her to fall and become injured. There was testimony tending to show the custom of the defendant in stopping its train at such a point and in the way it was stopped. The testimony of the conductor was that it was customary to pull the caboose up to the station when there was any lady passengers aboard, and that he announced before leaving the train that the train would be pulled up to the station. The plaintiff denied having heard this.

James Weatherly, for appellant.

Bowman Harsh & Beddow, for appellee.

DENSON J.

While the averment of negligence in the complaint is general, it is made with a sufficient degree of certainty, under the liberal rules of pleading recognized by Code 1896, § 3285. As has been frequently said by this court: "When the gravamen of the action is the alleged nonfeasance or misfeasance of another, as a general rule it is sufficient if the complaint aver the facts out of which the duty to act springs, and the defendant negligently failed to do and perform. It is not necessary to define the quo modo, or to specify the particular acts of diligence he should have employed in the performance of such duty." Leach v. Bush, 57 Ala. 145; Mobile & Ohio R. R. Co. v. Williams, 53 Ala. 595; Mobile & Montgomery Ry. Co. v. Crenshaw, 65 Ala. 566; L. & N. R. R. Co. v. Jones, 83 Ala 376, 3 So. 902; Armstrong v. Montgomery Street Ry Co., 123 Ala. 233, 26 So. 349; Central of Ga. Ry Co. v. Foshee, 125 Ala. 199, 27 So. 1006; Central of Ga. Ry. Co. v. Edmondson, 135 Ala. 336, 33 So. 480. Issue was joined and trial had on the general issue, and four special pleas setting up contributory negligence on the part of the plaintiff. The trial resulted in a verdict and judgment for the plaintiff in the sum of $850.

The court, at the request of the plaintiff, in writing charged the jury that: "A common carrier of passengers owes to its passengers the duty to exercise the highest degree of care, skill, and diligence, known to very careful, skillful, and diligent persons engaged in like business." There are two points made against this charge in the brief of counsel for appellant. The first point is that the charge requires too high a degree of skill, care, and diligence in the carriage of passengers on freight trains. The second point is that the use of the word "very" seems to require a standard of extraordinary care.

"A railroad company may refuse to carry passengers on its freight trains, but if it admits a passenger into a caboose attached to one of its freight trains, to be transported as a passenger, it incurs the same liability for the safety of such person as though she had taken passage in one of its regular passenger coaches. It is neither expected nor required that a passenger upon a freight train shall be provided with all the comforts and conveniences which are usually afforded passengers on a regular passenger train; but there is, on that account, no diminution in the obligation of those in charge of the freight train to convey its passengers with becoming and all necessary care, and to deliver them safely at or conveniently near their respective places of destination. It is the duty of a railroad company engaged in the transportation of passengers, whether by freight or passenger trains, to so run and manage its trains, and to so handle its passengers, that no one shall be injured by its own negligence." Nothing ruled in the case of Southern Ry. Co. v. Crowder, 130 Ala. 256, 30 So 592, is contrary to the doctrine above stated, but that case supports it. 2 Wood on Railway Law, 1121 et seq.; Elliott on Railroads, 1629; I. & St. L. R. Co. v. Horst, 93 U.S. 291, 23 L.Ed. 898; Ohio, etc., Ry. Co. v. Selby, 17 Am. Rep. 719; Ohio, etc, Ry. Co. v. Dickerson, 59 Ind. 317. In M. & E. Ry. Co. v. Mallett, 92 Ala. 209, 9 So. 363, this court, with respect to the degree of care and diligence required by those carrying passengers, laid down the rule that: "The law requires the highest degree of care, diligence, and skill by those engaged in the carriage of passengers by railroads, known to careful, diligent, and skillful persons engaged in such business." It is stated by counsel for appellee in their brief that charge No. 2, the one under consideration, was extracted from the Mallett Case. If we except the word "very" employed in the charge the statement is supported by the case referred to. In the case of Gadsden & Attalla Union Railway Co. v. Causler, 97 Ala. 235, 12 So. 439, the rule as declared in the Mallett Case, 92 Ala. 209, 9 So. 363, was fully approved and reaffirmed. In the Causler Case, the court, at the request of counsel for the plaintiff, instructed the jury: "That the defendant is liable in damages to the plaintiff for any injury resulting to plaintiff that occurred because defendant's agents failed to take all such precautions to avoid the injury as would be suggested by the highest degree of care, skill, and diligence by men of extraordinary care, skill, and diligence in carrying passengers by dummy line railway." The instruction was condemned for using the word "extraordinary." The Causler Case is cited and relied upon in appellant's brief as authority in support of his second point of attack made against the charge. The court in that case, speaking through Stone, C.J., in commenting on the word "extraordinary," said: " 'Extraordinary' is a strong word. In the sense in which it is used it means 'exceeding the common degree or measure; hence, remarkable; uncommon; rare; wonderful.' It is a much stronger word than 'prudent,' or 'ordinarily prudent'; and, if we approve this charge, do we not necessarily declare that only men of extraordinary care, skill, and prudence are eligible to the positions of engineers and conductors of railroads?" While we think the charge was properly condemned for the use of the word "extraordinary," we do not think it can by fair interpretation be held that the court intended in the Causler Case to modify what was said in the cases of Grey v. Mobile Trade Co., 55 Ala. 387, 28 Am. Rep. 729, and Tanner v. L. & N. R. R. Co., 60 Ala. 621, with reference to the degree of care, skill, and diligence required of common carriers. In the Grey Case, supra, the court, speaking, through Judge Stone, said: "A common carrier, who employs steam as his motive power, must bring to the service that degree of diligence which very careful and prudent men take of their own affairs. In this we but affirm that only very careful and prudent men should be placed in charge of such vehicles of transportation." In that case the court was speaking of carriers of merchandise, and in the Tanner Case, supra, after quoting the above extract from the Grey Case, the court speaking through the same learned judge, referring to the Grey Case, said: "In the language quoted we were speaking of the care and diligence required in the transportation of merchandise. For a much stronger reason should the rule be observed in carrying passengers, because human life is by far the most cherished and valuable of human endowments and possessions." In the Causler Case, 97 Ala. 239, 12 So. 439, the Grey and Tanner Cases are referred to and approved. The word "very," in common parlance, has not the same meaning as "extraordinary," and, used in the charge in the connection it was, it does not express that superlative degree of diligence or care that would follow the use of the word "extraordinary." In the connection the word was used, it meant that servants of carriers of passengers must be persons who are careful in a high degree--to no small extent--and this we understand is the requirement of the law. Neither do we think that in the use of the word "very" the charge transcended the degree of diligence required of carriers of passengers. Therefore the court committed no error in giving it. Grey's Ex'r v. Mobile Trade Co., 55 Ala. 387, 28 Am. Rep. 729;...

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