Best Park & Amusement Co. v. Rollins
68 So. 417
Ala.
1915
Check Treatment
SOMERVILLE, J.

(1) Conceding that the complaint in this case was defective in not showing that defendant’s servants were guilty of the negligence charged while acting within the scope or course of their employment, we think that the specifications of the demurrer do not sufficiently point out this defect. The only grounds supposedly in point are: (2) That no negligence is shown for which defendant is liable; and (5) that it is not shown how or wherein defendants servants were negligent. These grounds are very general in their terms, and are at least of ambiguous application.

(2) Moreover, the written charges of defendant (Nos. 2, 7, 15, 16, 17 and 18) specifically required proof by plaintiff of the omitted allegation. This cured the error on the pleading, if there was any, and, under our Practice Rule No. 45 (61 South, ix), forbids a reversal of the judgment on that ground.

(3) In his oral charge to the jury the trial judge instructed them, without objection from defendant, that *536the relationship of the parties was that of common carrier and passenger, and that defendant owed her the duty to exercise the highest degree of skill and care (for her protection and comfort while she was a passenger on its car) known to common carriers of passengers. Afterwards, at the instance of plaintiff, he gave the following written charge: “The law imposes upon a common carrier of passengers for hire or reward the duty of exercising the highest degree of care and skill known to persons engaged in the business of common carriers, and holds such common carriers responsible for the slightest negligence resulting in injury to one of its passengei’s.”

It may be a question of grave doubt whether the operation of a “scenic railway” in an amusement park, such as we are concerned with here, can be properly designated as a common carrier of passengers. But obviously the measure of care to be observed in their operation must depend upon the perils to which passengers thereon are ordinarily exposed, and this will, in turn, depend upon the character of the track and cars and their mode, of operation. A collection of the cases of injuries received by the patrons of amusement parks in the use of scenic railways and other devices will be found in 1 Neg. Cas. Ann. 609, and in 4 Id. 46.

Perhaps the leading case on this subject is O’Callaghan v. Dellwood Park Co., 242 Ill. 336, 89 N. E. 1005, 26 L. R. A. (N. S.) 1054, 134 Am. St. Rep. 331, 17 Ann. Cas. 407. As to the conditions specified, that case was not materially different from the case in hand. It was there said: “The passengers carried therein are subject to great risk of life and limb. The steep inclines, sharp curves and great speed necessarily are sources of peril. * * * We think, not only by fair analogy, but on reason and sound public policy, appellant should be *537held to the same degree of responsibility in the management of the railway in question as a common carrier.”

(4) And an instruction was approved which imposed upon the operator of the miniature railroad “the highest degree of care and caution for the safety of its passengers * * * consistent with the mode of conveyance and the practical operation of the railway.” This is the measure of care required of common carriers in this state (B. R., L. & P. Co. v. Barrett, 179 Ala. 274, 282, 60 South. 263), and hence the charge complained of Avas abstractly correct, and its giving could not therefore Avork a reversal of the judgment. But Ave are constrained, also, to the opinion that the measure of care prescribed by this charge upon carriers in general might be properly applied to the facts of the present case; and, if there Avas any likelihood of the jury’s applying to this case the tests of care applicable only to an ordinary steam or electric railway, defendant should have requested an explanatory charge limiting the application and comparison to those engaged in carrying passengers by means and agencies similar to those here used.

Finding no error, the judgment Avill be affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Thomas, JJ., concur.