Tennessee Coal, Iron & R. Co. v. Smith
Citation | 171 Ala. 251,55 So. 170 |
Parties | TENNESSEE COAL, IRON & R. CO. v. SMITH. |
Decision Date | 02 February 1911 |
Court | Supreme Court of Alabama |
Rehearing Withdrawn April 28, 1911.
Appeal from City Court of Bessemer; William Jackson, Judge.
Action by Richard H. Smith against the Tennessee Coal, Iron & Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
The first count is as follows:
The demurrers were as follows: (1) "Said complaint does not set forth a cause of action against the defendant, in that it does not appear that the defendant was guilty of such negligence as to make it responsible for plaintiff's injuries." (2) "It does not appear how plaintiff's injuries were proximately caused by reason of the negligence of the defendant." (3) "For aught that appears, the negligence complained of was the negligence of a fellow servant of the plaintiff." (4) "It does not appear how said tram track was defective and in an unsafe condition."
Count 4 is as follows:
Demurrers assigned to count 1 are reassigned to count 4, with the following additional grounds: (1) "It does not appear how or in what respect said mine entry was defective." (2) "The allegations in respect to said defect are too vague, indefinite, and uncertain." (3) "The defect as alleged does not constitute a defect within the terms of the employer's liability statute." (4) "It does not appear that there was such a defect in the ways, works, machinery, or plant connected with or used in the business of the defendant as to make this defendant responsible for the injuries complained of."
Percy, Benners & Burr, for appellant.
Estes, Jones & Welch, for appellee.
The reporter will set out in his statement of facts in reporting this case the first and fourth counts of the complaint and the grounds of demurrer thereto.
The action is by a servant against the master. It is based solely upon negligence. The counts, therefore, to state a good cause of action, must show actionable negligence on the part of the defendant, and injury to plaintiff proximately caused thereby. The only allegation as to negligence in the first count is as follows: "That said injuries and damages were proximately caused by reason of the negligence of defendant." This is not sufficient, nor is it made sufficient by the other allegations showing the relation of master and servant between the parties. All negligence is not actionable, and pleadings, to be sufficient to state a cause of action grounded on negligence, must affirmatively show that the negligence relied upon is actionable.
If pleadings as to negligence show a duty owed by the defendant to the plaintiff, and a breach of that duty to the damage or injury of plaintiff, very general averments of negligence will suffice. As is often said, they need be but little more than conclusions; but the duty and its breach must be shown. Merely alleging that a given act was negligence or was negligently done, without more, is not sufficient. Such pleadings may allege negligence, but the trouble is it is not in such cases "actionable negligence."
Actionable negligence has been defined by this court to be Southern Railway Co. v. Williams, 143 Ala. 217, 38 So. 1014. In every action grounded solely on negligence there are three essential elements to a right of recovery: First, a duty owing from defendant to plaintiff; second, a breach of that duty; and, third, an injury to plaintiff in consequence of that breach. The rule has been thus clearly and succinctly formulated by the Supreme Court of Indiana. Faris v. Hoberg, 134 Ind. 274, 33 N.E. 1029, 39 Am. St. Rep. 265:
The true rule as to pleading negligence is thus stated in 29 Cyc p. 565 et seq.: And the rules are thus stated in 14 Encyclopedia of Pleading and Practice, p. 331 et seq.: These rules have been thus often stated by this court: ...
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