Birmingham Belt Railway Co. v. Drake

56 So. 53 | Ala. Ct. App. | 1911

PER CURIAM.

The first assignment of error insisted upon is that the court erred in overruling defendant’s demurrer to the first count of the complaint. The reporter will set out this count, and the demurrer thereto, in his report of the case.

The count was not subject to any of the grounds of demurrer. It alleged that plaintiff, at the time of the injury complained of, was upon the premises of the Continental Gin Company, engaged in the business of such company, and that defendant company was operating a railroad, and that it entered the premises of the said gin company through a gate, and that it so negligently managed or operated the railroad that its train or cars struck the gate or the post to which the gate was fastened, knocking the gate down and against the plaintiff, and injuring him in the manner particularly alleged. While the negligence is alleged in very general terms, it is sufficient when considered in connection with all the other facts alleged.

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 the Supreme Court of Alabama to be: “The failure to discharge a legal duty to the person injured. If there is no duty, there is no actionable negligence. Even if the defendant owes a duty to some one else, but does not owe it to the person injured, no action will lie. The duty must be to the person injured.”—Southern Railway Co. v. Williams, 143 Ala. 217, 38 South. 1013. In every action grounded solely on negligence, there are three essential elements to a right 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 sufficiently formulated by the Supreme Court of Indiana (Faris v. Hoberg, 134 Ind. 269, 33 N. E. 1028, 39 Am. St. Rep. 265) : “In every case involving actionable negligence, there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to perform that duty; and (3) an injury to the plaintiff' from such failure of the defendant. When these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these elements renders a complaint bad or the evidence insufficient.”

The count here in question affirmatively shows that the plaintiff was neither a trespasser nor a licensee upon the track of the defendant at the time of the injury, and shows a duty owing plaintiff from defendant not to negligently injure him, and a breach of that duty, in that defendant so negligently operated its train or cars as to cause the gate to fall upon and injure plaintiff. This is sufficient, under the rules of pleading negligence long since established by this court. It fully conforms to the rule announced in the cases of Lacey-Buch Co. v. Holmes, 164 Ala. 96, 51 South. 236, and L. & N. R. R. Co. v. Holland, 164 Ala. 73, 51 South. 365, 137 Am. St. Rep. 25, relied upon by appellant. The defendant certainly owed the Continental Gin Company, and its servants, agents, and those rightfully upon its premises, the duty not to so negligently operate its train through the gate as to injure them. The complaint unquestionably brings the plaintiff within this protection, and alleges a breach of that duty and injury in consequence thereof. If it was the duty of some one other than the defendant to see that the gate was kept open while defendant’s trains were passing through, or to see that the space was ample for the safe passage of its trains, it was matter for special defense, and need not be negatived in the complaint.

It is next insisted that the general affirmative charge should have been given for the defendant as to this count. There is evidence in this record from which the jury could infer every material allegation of the complaint, which fact would render improper the giving of the general affirmative charge for the defendant.

These being all the assignments of error insisted upon, or made, it follows that the judgment appealed from must he affirmed.

Affirmed.

Note. — The foregoing opinion was prepared by Mr. Justice Mayfield, of the Supreme Court, before the transfer of the case to this court, and is adopted by this court.