Birmingham Railway, Light & Power Co. v. McDaniel

59 So. 334 | Ala. Ct. App. | 1912

PELHAM, J.

-The averments of the first and second counts of the complaint can be construed as alleging the relation of passenger and carrier between the parties to the suit in such a way as to show the duty owing from the latter to the former growing out of such a relationship to have been breached by a wrong done by the defendant, or its conductor, and under the established rule in this state permitting general averments of the breach or wrong complained of in terms but little short of legal conclusions, where a relationship out of which a duty arises is shown to exist, the demurrers interposed to these counts were properly overruled. — Birmingham Ry. Co. v. Adams, 146 Ala. 267, 40 South. 385, 119 Am. St. Rep. 27; Southern Ry. Co. v. Burgess, 143 Ala. 364, 42 South. 35; M. & C. R. R. Co. v. Martin, 117 Ala. 367, 23 South. 231; Armstrong v. Montgomery Street Ry. Co., 123 Ala. 233, 26 South. 349.

The third count of the complaint, however, was clearly subject to the demurrers interposed to it. Construing the allegations of this count most strongly against the pleader, the act of the conductor complained of in putting the plaintiff off at another place than her destination could have been induced by a request upon her part to be put off at that place. The act of the conductor in putting the plaintiff off at this place is not alleged to be wrongful, nor will the averment that it was willfully, wantonly, or intentionally done carry with it such an allegation, by inference or otherwise, when the count is being tested by demurrer and its allegations to be construed most strongly against the pleader. This count makes no averment and contains no facts disclosing the plaintiff’s right to be carried by the defendant company to the particular place styled in the complaint as “the place of her destination,” and it is not averred, nor is it shown by the facts stated, that any duty rested upon the defendant to carry the plaintiff to the point of her destination. It is not shown or alleged that the plaintiff’s destination was on the defendant’s line of railroad, or that the defendant’s conductor had any information or knowledge with respect to the plaintiff’s destination, or that such want of information or knowledge was due to negligence on the part of the •defendant or its conductor. It does not appear from the allegations of this count of. the complaint that the plaintiff paid her fare to this place alleged as her destination, or informed the conductor of it, or of the place she desired or intended to make the end of her journey, or at which she wanted to disembark from the car. For aught that appears from the allegations of this count of the complaint, it may be that the plaintiff’s destination referred to was not on, but off of or beyond, the defendant’s car line, and that the plaintiff was directed to get off or was put off by the conductor at a point on defendant’s line of railroad of her own choice and at her own request. It does not appear-but that-plaintiff was carried to the point on defendant’s car line nearest to the place of her destination, and was put off there, even though a strange place to her, because of her desire to be put off at that place. The allegation that this was a strange place and known by the conductor to be strange to the plaintiff, and that the conductor intentionally (willfully or wantonly adds nothing as used in this connection) put the plaintiff off at this place, when no duty resting upon the defendant is averred or shown to carry the plaintiff to the place of her destination, and that place is not so much as shown to be known to the conductor or to have been on the defendant’s railroad, does not state facts showing a breach of duty by the ■defendant or a wrongful act of its conductor and, in the absence of any general allegation that the act was wrongful, is insufficient. There being no allegation that the act complained of. was wrongful, and no facts stated .showing a wrong or breach of duty, or from which such a conclusion could be drawn under the recognized rules of construction, the defendant’s demurrers to this count should have been sustained.

This case is before us on the record without a bill of exceptions, and no errors are assigned except those we have discussed.

Reversed and remanded.