Alabama Great Southern Railroad v. Collier , 112 Ala. 681 ( 1896 )

STONE, O. J.

Appellee, Collier, was a passenger on the train of appellant, and was occupying one of the seats on the train. The grievance he complains of is charged in the following language : “That said train containing said car in which plaintiff was riding was then running at a high rate of speed, and upon the walls of said car of said train in which plaintiff was riding, and over and above the seat provided for plaintiff as aforesaid, defendant had negligently and carelessly hung, placed, or affixed a glass bottle containing a liquid or fluid, and that said bottle was broken or exploded, and the contents thereof were negligently and carelessly poured and spilled over and upon the clothing and person of plaintiff ; that said liquid so spilled upon plaintiff injured and damaged and destroyed plaintiff’s clothing, and burnt and scalded his face and neck and back.” There was a demurrer to the complaint, assigning several grounds. The second ground is that the complaint fails to aver that the bottle of fire extinguisher was broken “by the negligence of defendant, or its servants.” Possibly, under strict grammatical rules, there is some indefiniteness in the charge of negligence complained of in this case. The uncertainty of expression relied on for reversal, according to the contention of appellant, consists in the alleged . absence of averment that there was any negligence in the manner of hanging, placing, or affixing the bottle, which caused it to break or explode ; that the only charge of negligence found in the complaint is that the glass bottle containing the liquid was negligently and carelessly “hung, placed, or affixed” on the walls of the car in which plaintiff was riding, and over the seat given him ; “and that said bottle was broken or exploded,” &c., — no averment that the bottle was likely to break or explode, or that the breaking resulted from carelessness or negligence in the manner of hanging, placing, or affixing the bottle to the walls of the car. We think there is nothing in this demurrer . The negligence complained of is twofold: First, that the bottle was carelessly hung, placed, or affixed ; and, second, that it was carelessly placed or affixed on the wall of the car, “over and above the seat provided for plaintiff,” and in which he was furnished a seat. Tested by the rule of pleading applicable to such cases, namely, certainty to a common intent, we hold the demurrer was rightly overruled.

There is nothing in the other exception reserved.

Affirmed.

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