Thompson v. Nashville, C. & St. L. Ry.

• Decision Date: 08 April 1909
• Citation: 160 Ala. 590,49 So. 340
• Parties: THOMPSON v. NASHVILLE, C. & ST. L. RY.
• Court: Alabama Supreme Court

49 So. 340

160 Ala. 590

THOMPSON v. NASHVILLE, C. & ST. L. RY.

Supreme Court of Alabama

April 8, 1909

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by Willie Thompson against the Nashville, Chattanooga & St Louis Railway. From a judgment for defendant, plaintiff appeals. Reversed.

Culli &amp Martin, for appellant.

Walker & Spragins, for appellee.

SIMPSON J.

This is an action by the appellant against the appellee for damages on account of injuries claimed to have been received by the plaintiff as the result of a collision of the car on which plaintiff was with another car. The second count of the complaint alleges, in substance, that plaintiff was in the employ of the Eagle Iron Company engaged in loading wood on one of the cars of the defendant, which cars were being propelled by a locomotive under the charge of John Lane, an agent or employé of defendant; that plaintiff was on said car by the invitation or request of said John Lane, to be transported to Lane's switch, and that his said car was run violently against other cars "by the negligence or carelessness of defendant, its agents or employés in the management or control of said car." The fifth count alleges substantially the same facts, except that it avers that plaintiff was carried under some arrangement between said Eagle Iron Company and defendant to the point where the car was loaded, and was then requested or invited on said car or train to be carried back to Lane's switch; that, while being so transported, the collision occurred; and that said injuries "were caused by the defendant, its agents or employés, wantonly, willfully, or intentionally propelling said car," etc., "knowing that plaintiff was on said track, and would likely be injured." The sixth count alleges that while plaintiff was on said car "at the request or invitation of defendant, its agents or employés, in violation of its duty to plaintiff, the defendant, its agent or employés, propelled said car wantonly, willfully, or intentionally," etc.

The first assignment of errors is to the action of the court in "sustaining defendant's demurrer to plaintiff's counts 2, 5, and 6 of complaint." This assignment being general, embodying in one assignment errors claimed as to several rulings, if either of the grounds of demurrer to either of the counts is sustainable, the ruling of the court will be upheld. Western Railway of Ala. v. Arnett, 137 Ala. 414, 425, 34 So. 997. The sixth count does not allege facts which show the relation of passenger sustained by the plaintiff. It does not state that the plaintiff was a passenger, nor that the car on which he was being carried was a passenger car; nor does it state that the employé of the defendant who invited or requested him to go on the car was acting within the scope of his employment. An invitation from an employe not connected in any way with the running of the train would not be sufficient to create the relation of passenger. 2 Hutchinson on Carriers, § 998, p. 1149, 1150 and note; Broslin v. K., C., M. & B. R. R. Co., 114 Ala. 398, 21 So. 475; Holmes, Pro. Ami, v. B. S. R. R. Co., 140 Ala. 208, 37 So. 338. Consequently the...