Western Ry. of Alabama v. Madison
80 So. 162
Ala. Ct. App.
1918
Check Treatment
BROWET, P. J.

[1-3] In stating a cause of action for negligence, it is incumbent on the plaintiff to show .by appropriate averments that the defendant owed him a duty, that there was a breach of such duty, and that injury resulted as a proximate consequence. While a breach of duty may be shown by general averments amounting to the statement of a legal conclusion, the averment of the facts from which the law raises a duty owing by the defendant to the plaintiff must he more specific, and must relieve the plaintiff from the imputation that he was a wrongdoer at the time of the injury, or that the injury was the result of negligence occurring after the discovery of peril. Stewart v. Smith, 78 South. 724; 1 Walker v. A., T. & N. R. R. Co., 194 Ala. 360, 70 South. 126. What was said in the case first above cited is here appropriate:

“The complaint considered in Walker v. A., T. & N. R. R. Co., supra, by averring that the plaintiff was injured through the negligence of the defendant, its agents or servants, while he was crossing the defendant’s track, relieved the plaintiff from the imputation that he was a wrongdoer. It is a familiar rule of law that one may cross over a railroad track wherever he may have occasion to do so, and the act of so crossing such track is not in and of itself negligence, nor does it constitute the person so crossing a wrongdoer or trespasser. * * * In considering the complaint in' this case in the face of the demurrers, we must assume that the pleader has stated his case as favorably as the facts will justify, and its averments cannot be aided by implication or intendment. All such must be resolved against the pleader. * * * Or, as the rule has been otherwise stated, ‘pleadings are on demurrer to be construed most strongly against the pleader, and must negative every reasonable adverse intendment.’ * * * ”

If, treating the averments as true, a state of facts consistent with them may be supposed, that would operate to render the averments insufficient, such á state of facts will be presumed or intended. Stewart v. Smith, supra; Scharfenburg v. Decatur, 155 Ala. 654, 47 South. 95; Argo v. Sylacauga Merc. Co., 12 Ala. App. 442, 68 South. 534; Kershaw v. McKown, 12 Ala. App. 485, 68 South. 559. There is nothing in the first count of the complaint in this case to show that the plaintiff at the time of the alleged injury was crossing the defendant’s tracks; or.to negative the intendment that he was loitering or .traveling along the track, and the demurrers thereto should have been sustained.

What was said in Western Railway of Ala. v. Mitchell, 148 Ala. 43, 41 South. 427, is not applicable to this case. That was an action for damages for the. negligent killing of mules that wandered upon the railroad tracks. Here we must assume, in the absence of averments to the contrary, that the wagon was on the defendant’s tracks through human agency, and the rule of liability when applied to such cases is qualified by the presumption that intelligent beings will take steps to escape injury. Ga. Pac. R. R. Co. v. Blanton, 84 Ala. 158, 4 South. 621.

[4] If, as some of the evidence tends to show, the crossing was maintained by the railroad company, the rule of law stated in Walker v. A., T. & N.’R. R. Co., supra, would govern as to the defendant’s liability. It was there said:

“Where, however, a railroad company holds out an invitation to the public to cross at a particular place, as, for example, by preparing and maintaining a crossing for the public convenience, it assumes in the operation of its trains at such place, without regard to the statute, the burden of exercising the reasonable precautions to protect the-publie when using it on such inducement or invitation; the degree of care to be measured, not by the absolute requirements of the statute, but by the potentialities and probabilities of the situation thus created. Elliott on Railroads, § 1154.”

[5] If, on the other hand, this was a mere private neighborhood crossing not maintained by the railroad, it was not incumbent upon the defendant to know of the presence of the plaintiff’s wagon on the track, or to keep a special lookout for him. The only duty imposed upon the engineer under such circumstances is to use due and reasonable diligence to avoid injury after he became aware of the perilous position of the wagon. Walker v. A., T. & N. R. R. Co., supra; A. G. S. v. Linn, 103 Ala. 134, 15 South. 508.

[6-8] Under the evidence, it was a question for the jury as to whether or not the rail *590 road maintained the crossing, and the excerpts from the charge of the court made the basis of assignments 2, 3, and 4, were invasive of the province of the jury, in that these excerpts assumed that the crossing was maintained by the railroad company. Charge 6 refused to the defendant ignores the evidence tending to show that the railroad maintained -the crossing, and the charge was properly refused.

Eor the errors pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.