125 Ala. 237 | Ala. | 1899
Tlie complaint contains three counts. Counts one and two are substantially the same. They are no more than legal conclusions. Not a single fact is alleged in either out of which any duty arose or was owing on the part of the defendant to the plaintiff, nor in Avhat the breach of duty consisted upon which the plaintiff predicates the defendant’s negligence. It would be difficult to frame counts more general, and containing less information to the defendant as to Avhat it is required to defend against than these. As to Avhether the plaintiff complains of the defendant for the negligent destruction of its cotton while the cotton aa'Us in transitu, in the warehouse of the defendant, upon the platform' of defendant’s station house, on the right of Avay of the defendant or on the premises of the plaintiff, count number two does not inform ns. Furthermore, by what means or through what agency the fire was communicated to plaintiff’s cotton is also a matter of conjecture. Whether by sparks emitted from a passing engine which directly set fire to the cotton or to some inflammable substance upon the defendant’s right of Avay and thereby communicated to the cotton, or Avhether by carelessness of some one in charge of the station, the house or platform of the defendant Avas destroyed by fire Avhich burned the cotton, or by the carelessness of some agent or servant of defendant in the handling of <a lighted lamp, candle, match or torch communicated the fire to the cotton, Ave are not informed, as Ave have said, by either of these counts. It requires no argument to show that the defendant would be at a serious disadvantage if required to take issue upon a complaint couched in such broad language as that affords it no information whatever as to the act of non-feasance or misfeasance complained of. If the fire was communicated to the cotton in either of the ways suggested, and of which the plaintiff Avould have the right to make proof, if issue was taken upon the count, the character of the evidence required of the defendant to rebut the contention Avould be materially and entirely different. Should plaintiff rely upon a destruction of the cotton by means of sparks from a passing engine, the question of the proper con
The pleadings must be as brief as is consistent with perspicuity and the presentation of the facts or matter to be put in issue, in an intelligible form. No> objection can be allowed for defect of form, if facts are so presented that a material issue in law or fact can be taken by the adverse party. — Code, § 3285.
In Phœnix Insurance Co. v. Moog, 78 Ala. 301, this court said: “Precisely the same principle applies to averments of negligence, whether urged by way of defense or in maintenance of an action. It is not sufficient to aver mere conclusions of law — the facts must be averred from which the conclusion of negligence is dedueible.” After quoting this rule, Justice Clopton, in Ensley Railway Co. v. Chewning, 93 Ala. 26, said: “This rule has been relaxed from necessity in cases where the cause of action consists in the non-performance or misperformance of duty. In such cases tlié rule has been thus stated: 'When the gravamen of the action is the alleged non-feasance or misfeasance. of another, as a general rule, it is sufficient, if the complaint avers, facts out of which the dutjr to act springs, and that the defendant negligently failed to do and perform etc. ; not necessary to define the quo modo or to specify the particular acts of diligence he should have employed in the performance of such duty.’ The reason given is, 'what the defendant did and how he did it and what he failed to do are generally better known to the defendant than to the plaintiff; and hence it is that, in such cases, a general form of averment is sufficient.’ ” This rule is announced and recognized as the proper one by this court, in the cases of Mobile & Ohio Railroad Co. v. George, 94 Ala. 214; Bessemer Land & Improvement Co. v. Campbell, 121 Ala. 50; Montgomery St. R’y Co. v. Armstrong, 123 Ala. 233, and others. In each of these cases, however, there was a general averment of fact constituting the non-performance
The requisites of a good declaration in action for negligence are well stated by Wiles, J. in Gautret v. Egerton, L. R. 2 C. P. 371, 374. “It ought,” he says, “to state the facts upon which the supposed duty is found, and the duty to the plaintiff with the breach of which the defendant is charged. It is not enough to show that the defendant has been guilty of negligence and how he became bound to use care to prevent injury to others.”
“Such a duty arises out of some relation existing at the time between the person injured and the defendant, which the complaint, by the averment of facts should shove” — Thiele v. McManus, 3 Ind. App. 132.
See also a statement and application of this doctrine in Smith v. Tripp, 13 R. I. 152; Kennedy v. Morgan, 57 Vt. 46; The Flint & Pere etc. R’y Co. v. Stark, 38 Mich. 714;
In Metcalf v. Hetherington, 11 Ex. Rep. 257, it is said: “A declaration which charges a breach of duty, must contain an allegation from which the duty can be inferred, otherwise the declaration is bad.’’ — Dutton v. Powles, 2 Best. & S. 174, 31 L. J. Q. B. 191; Cone v. Chapman 5 Adol. & E. 647; Hurdman v. N. E. Railway Co., 3 C. P. Div. 168; Form of complaint in actions against railroad company for negligence in using, and managing locomotives found on page 351 of Heard’s Civil Precedents.
Count number 3 differs in substance only from counts 1 and 2 in the averment “the defendant, by the negligence of its agents and servants who were then and there engaged in the operation of a train of cars and engine, upon defendant’s railway at Bozeman., Alabama, negligently threw from said engine, sparks, which set fire to cotton,’’ etc. Here again not a single fact is averred out of which the duty to act arose, and it is as defective in this respect as counts 1 and 2. At best,, what duty was due to the plaintiff by the defendant in the performance of the act by its agents or servants in throwing from the engine sparks, lies in mere inference,, argument or deduction.It is certainly not averred. “Facts, and not mere inferences, arguments or deductions, áre required to be alleged in pleadings.” — Meadows v. Meadows, 73 Ala. 356.
In my opinion the counts are bad, and the demurrer to each of them should have been sustained. A majority of the court, however, do not. agree with me but hold the counts are sufficient. To my mind this holding not only emasculates the statute (§3285), but contravenes all rules of good pleading as well as many well considered opinions in other cases delivered by this fcourt, where negligence is the gravamen of the action. — Central R. R. Co. of Georgia v. Lamb, 124 Ala. 172.
The testimony offered by the plaintiff tended to show that sixty-six bales of cotton belonging to it of the value of $2,200, located on its premises fifty feet -and two inches from the center of the defendant’s track, were destroyed
The evidence introduced by the defendant established without dispute that the train was a light one and was managed by skillful persons, in a proper manner. That the locomotive was equipped 'with the latest practical improved appliances to prevent a-s far as possible the emission of'sparks and was in good repair and condition. That the appliances upon this engine were such as are used by other well regulated roads. That no appliance or -equipment would prevent the escape of -sparks. That the appliance upon this engine was a wire netting AAdtli apertures in it to alloAV the exhaust to pass through. That if the apertures were smaller than those in use upon this engine, it would cause it to choke, and when this occurred, the engine would not produce steam. That when the train passed Bozeman -station, where 'the cotton was destroyed, the engine was -emitting no more than the usual amount of sparks and the quantity of -sparks escaping depends upon the exhaust — when great the s-parks would fly further and higher.
The first question presented is the one involving the burden -of proof, and the extent of its operation. As to the burden, whether on the plaintiff -to show some fact establishing- negligence on the part of the defendant in the operation or equipment of its engine, or whether upon the defendant to prove due care in its handling and
This principle is stated in 13 Am. & Eng. Ency. Law (2d ed.) 504, -arid supported by the authorities cited in the notes, to be: “The general rule on this subject is that if the defendant shows that the engine alleged to have caused the fire was of proper construction, and equipped with approved devices and appliances to prevent the escape of fire and sparks, was in good repair and prudently managed and controlled, the prima facie presumption arising from the mere communication of fire will be rebutted.” And as to whether the presumption is rebutted, is for the court or jury, the rule seems to be, “that where there is no evidence, direct or inferential, of actual
In Spaulding v. The C. & N. W. Railway Co., 33 Wis. 591, is is said: “But the learned counsel for the plaintiff very ingeniously argue, that the presumption that the defendant’s locomotives were not properly constructed and equipped, has the force and effect of testimony in the case; and that the question whether the testimony introduced for the purpose of overcoming such presumption is sufficient for that purpose, is necessarily a question of fact to be determined by the jury. The argument would probably be a sound one, were this a presumption of fact. Its weight and force, and consequently the amount of proof essential to overcome it, would in such Case be for the jury, and not for the court, to determine. But the presumption under consideration is clearly one of law, and is governed by an entirely different rule. Its weight and effect, and the amount and. character of the proof necessary to overcome it, are questions for the court, and were determined by this court -on the former appeal. In such cases, if there is a conflict of testimony, the jury must determine what facts are 'proved; but where, as in this case, there is no .such conflict, and the testimony is clear and satisfactory against the presumption, it is the duty of the court to hold, as matter of law, that the presumption is -overcome. If, instead of doing so, the court leaves it to the jury to determine the fact, it is -error, which will work a reversal of the judgment.”
Again the same court said in Spaulding v. C. & N. W. R’y Co., 30 Wis. 122, 123: “The presumption, therefore, of negligence or of the want of proper equipment, arising from'the mere fact of fire having escaped, is not conclusive, nor, indeed, a very strong one, but; of the two, rather weak and unsatisfactory. It is indulged in merely for the purpose of putting the company to proof and
In kindred cases, involving the presumption of negligence for'killing stock, where the burden of proof is cast upon the railroad company by the statute, this same principle has been frequently recognized and enforced by this court. — Code, § 3442; A. G. S. R. R. Co. v. Moody, 90 Ala. 46; L. & N. R. R. Co. v. Hembree, 85 Ala. 481; A. G. S. R. R. Co. v. Smith, 85 Ala. 208; A. G. S. R. R. Co. v. McAlpine, 75 Ala. 113, 121; Anderson v. B. M. R. R. Co., 109 Ala. 129.
Applying these principles to the facts as disclosed by the record in this case, conceding that the evidence introduced .by the plaintiff' tends to establish that the fire-originated from sparks emitted from the engine of defendant, it must be held as a matter of law that the presumption indulged is rebutted, and the defendant entitled to have the affirmative charge requested by it to be given.
It may be and doubtless will be said that the cotton destroyed was fifty feet from the 'center of the track, making it, practically, the same distance from the passing engine, and that this fact affords some evidence of actual -negligence either in the. construction or equipment of the engine or its handling. In the absence of evidence as to what distance -a properly equipped and skillfully managed engine, under similar atmospheric conditions, would throw sparks, it is obvious that in order for the jury to conclude from the fact that the cotton was located fifty feet away from the track when destroyed -is evidence of negligence, they must indulge a presumption of negligence or base their conclusions upon their own judgment, experience or knowledge. Confessedly the defendant is not answerable in damages
In the case of Musselichite v. Receivers, 4 Hughes (U. S.) 166, the distance was forty yards, and the court directed a verdict for the defendant, saying: “The trains in this case were running lawfully -over the company’s property; * * running thus, they are not responsible for fires arising from sparks, proceeding from their -own engines unless it is proved that the emission of the -sparks was due to negligence -on the paid of the defendants, either in using engines improperly equipped and furnished ; or in using properly furnished engines in some negligent manner.”
In Hagan v. Railroad Co., 86 Mich. 615, the building destroyed was 160 feet from the track. The opinion expressly points out the evidence tending to prove actual negligence and the decision is made to rest upon that point and not upon the distance.
In Hull-v. S. V. R.R. Co., 14 Cal. 387, while the distance is not shown in the statement of facts, the court said: -“There was proof to show that this result was not probable from the ordinary working of the engine,” and sustained the-railing of the .lower-court in submitting the question of negligence vel non to the jury for this reason.
Many other cases can be foxxnd where the distance between the property destroyed and the trade was greater than here, yet in none of thenx is it intimated by the coxirt, that mere proof of this fact was evidence of negligence in fact. Nor can the expression in the case of L. & N. R. R. Co. v. Malone, 109 Ala. 516, that “We are of opixxion that it can be laid -down as a soxxnd proposition of law, in nowise dependent upon the experience and observation of- jixrors, as distinguished from common knowledge, ‘that if fire is originated by the falling of sparks from an engine at a distance of sixty-three feet it is the result of negligence, arising either from impxuper management of the engine or defective appliances,” when construed in connectioix with the evidence in the cause, be said to so hold. For the Jxxstioe delivering the opinion'expressly says in the next succeeding sentence- that “Certainly the tesimony here referred to was undisputed “that it was impossible'for engines of that construction and same appliances to set fire to any-
Again, it may be said that the plaintiff’s evidence shoAvvs that the engine Avas emitting a great many sparks. But it was not shewn that this was unusual, or that a properly equipped and prudently conducted engine Avould not emit quite as many as this One did, loaded as this ore was, going at the same rate of speed upon a similar grade and"burning the samé kind of fuel. Indeed, thq
The remaining question which we will discuss -is the one involving the doctrine of contributory negligence invoked against the plaintiff in placing its cotton upon its premises so near the track of the defendant’s road as that in case the agents or servants of the defendant are negligent in the management of the. locomotive or in case there is .negligence in the construction of the engine, the cotton may be destroyed by fire, caused by sparks emitted from the engine. Where contributory negligence is pleaded, it is a plea in confession and avoidance, which admits negligence on the part of the defendant, but seeks to avoid liability therefor by alleging that the plaintiff was guilty of negligence which, contributed to his injury. 5 Enc.y. PI. & Pr. 11. “Assuming as a postulate, the negligence of a defendant as a proximate cause of an injury, then the essential elements of contributory negligence
The only limitation upon the right of enjoyment of .one’s property is to do so in such manner as not to injure that of another — sic utere tuo ut alienum non loedas. This is the sum and substance of his whole duty.
In placing his cotton upon his own premises, the plaintiff was in the exercise of a lawful right and no possible injury could come from that act to others. He cannot be required in locating it to anticipate the negligence of the defendant. On the contrary he would have the right to presume that the defendant would use properly equipped locomotives, and that its agents or servants would operate them in a careful manner. It is true the plaintiff is chargeable with the knowledge that properly constructed and equipped engines carefully handled when in operation emit sparks. And should he place his property within the area within which sparks or live cinders may fall from a properly equipped engine, carefully handled, and it is destroyed by fire caused by sparks so emitted, it is his loss. But this loss must be attributed to the fact that the railroad company has been guilty of no negligence and cannot be made to rest upon the doctrine of contributory negligence. The fact that the area within which sparks or live cinders may fall from a properly equipped engine, carefully handled, is incapable of definite ascertainment does not and cannot affect the
Reversed and remanded.