| Ala. | May 15, 1913
-Action by a pedestrian (appellee) for damages resulting from an injury received by falling into a ditch or drain alleged to have been negligently permitted or allowed by the appellant in a public street in which appellant’s railway was constructed. Of the four counts filed, only count 2 was submitted to the jury. The report of the appeal will contain count 2.
Independent of statute or contract, when a railway is allowed to be constructed in a public street, the duty attaches to have and to keep that part of the street occupied by its track, including that part related to the support of the rails, in such condition as to be free from pitfalls and from danger to the traveling public. — Montgomery St. Ry. Co. v. Smith, 146 Ala. 316" court="Ala." date_filed="1905-12-21" href="https://app.midpage.ai/document/montgomery-st-ry-co-v-smith-7361935?utm_source=webapp" opinion_id="7361935">146 Ala. 316, 39 South. 757; Reading v. Traction Co., 202 Pa. 571, 573-4, 52 Atl. 106; Nellis on Street Railroads, pp. 259-262, 263, 266; 3 Dillon’s Munic. Corp. § 1276; 2 Elliott on Streets & Roads, § 971; 36 Cyc. pp. 1403, 1404, 1405, 1406.
For negligence in respect of the performance of this duty the railway company is liable to one (a traveler in the public streets) injured as a proximate consequence of such neglect. Reasonable care and diligence in this regard is the measure of the duty thus resting upon
It necessarily follows from those premises, definitive of the duty imposed independent of contract or statute, that a traveler in a public street who would legally trace his injury to the negligence of the railroad company must aver in his pleading such a state of fact as will show that the company has omitted its duty to the traveling public. He must aver in the form of facts not in the form of conclusions deduced by him from his view of the fact. The duty on the company is not coextensive with the limits of the street. It is confined, and so to the end that the duty is to restore, to repair, and not to. improve, the street. If the sole efficient cause of the injury is a condition that existed when the railway was installed in the street, manifestly the company is not liable therefor.
In order to sufficiently and properly charge in a pleading a breach of duty, the duty itself must be made to appear, not as a conclusion of the pleader but from facts averred, unless the relation set forth between the plaintiff and the defendant raises in law the duty which it is claimed was breached, to the injury complained of.
The only averment that tends in any degree to allege a duty upon this defendant in respect of this street is that afforded by implication only in the allegation 'of negligent breach by defendant, to plaintiff’s injury. To read from the count an averment of the duty, charged to have been breached by defendant, the process must be one of inference merely — an inference deducible
The sixth to tenth (inclusive) grounds of the demurrer to count 2 were well taken.
Prom the evidence it appears that two distinct railways are laid (at and about the point Avhere plaintiff was injured) in what the maps shoAv is Thirteenth street] and that the ditch or drain crossed at a right angle the roadAvay of these companies. The railway companies constructed trestles or railroad bridges over this ditch or drain. There was an appreciable space between these two trestles or bridges where they overlay the ditch or drain. The evidence is without dispute that plaintiff walked into the ditch or drain between these structures, and received the injuries complained of. His course was between the two railways. Aside from all other considerations, we do not find any basis in the evidence for a conclusion that the plaintiff’s injury was in consequence of the negligence of the defendant in failing to cover the ditch at the point at which plaintiff fell into it. In other words, under the proof here, there is no evidence establishing, or tending to establish, a breach of duty by defendant, in respect of the ditch or drain at the point of injury. There was no evidence that the installation of the roadway used by defendant created the ditch or drain. This point Avas not in the part of the street occupied by the roadway of the defendant. The fact that this point was between that and the other roadway laid in the street did not impose on the defendant the duty to cover that part of the street. So, if the plaintiff’s pleading should be reformed to sufficiency and the evidence remains as it here appears, no recovery by plaintiff could be had.
Reversed and remanded.