Birmingham Ry. L. & P. Co. v. Adams , 146 Ala. 267 ( 1906 )

WEAKLEY, C. J.

There is no bill of exceptions in the record, and the appeal is prosecuted to review rulings on demurrer to the four counts of- the complaint. No argument or citation of authority is necessary to demonstrate that the demurrers to counts 1 and 2 were properly overruled. The important and controlling question arises upon, count A, added by amendment. Count R is identical with the former in its essential averments, except that, instead of simple negligence, it charges willful, wanton, or intentional misconduct, and the principles io be announced with reference to count A will also apply to count R.

Many grounds of demurrer were assigned, but the only ones we deem it necessary to discuss, although all have been considered, are the following: (1) It does not appear what duty defendant owed the plaintiff; (2) it does not appear with sufficient certainty wherein or how defendant violated any duty it owed the plaintiff; and (3), for that the relation existing between plaintiff and defendant is not averred with sufficient certainty, in that the count fails to allege defendant was a common carrier.

Count A avers that the plaintiff, “while a passenger upon defendant’s railway,” was injured in a way specified, and that his injuries were proximately caused by the negligence of the defendant’s servants “in and about the carriage of the plaintiff as a passenger of the defendant.” Upon the authority of Armstrong v. Montgomery Street Railway Co., 123 Ala. 233, 26 South. 349, and cases therein cited, it must be held that the count was not open to the objection because of the generality of its averment of negligence. Nor was it necessary to specially aver that defendant owed a duty to the plaintiff not to injure him. It has long been settled in this stale that “when the gravamen of the action is the alleged nonfeasance or misfeasance of another, as a general rule, it is sufficient, if the complaint aver the facts out of which the duty springs and that the defendant negligently failed to do and perftmn,” etc. — Leach v. Bush, 57 Ala. 145; M. & M. Ry. Co. v. Crenshaw, 65 Ala. 566. And when the facts out of which the duty is supposed to spring are averred, and these facts show a duty to the plaintiff not negligently to injure him, the pleading is sufficient (under our liberal rules, which authorizes averments in their nature little more, if anything, than legal conclusions) as against a demurrer complaining that no duty is shown. The duties incident to a carriage of passengers, when the relation is shown, will be inferred without being specially pleaded. — Evansville v. Duncan, 28 Ind. 441, 92 Am. Dec. 322.

The inquiry then arises whether the facts averred in count A show the relation of carrier and passenger between the plaintiff and defendant. In construing the count, it must be remembered that certainty to a common intent is all that is necessary. — L. & N. R. R. Co. v. Hall, 91 Ala. 117, 8 South. 371, 24 Am. St. Rep. 863. All pleadings should be as brief as is consistent with perspicuity and the presentation of the facts in an intelligible form, and “no objection can be allowed for defect of form, if facts are so presented that a material issue of law or fact can be taken by the adverse party thereon.”— Code 1896, § 3285. Although the count does not aver that the defendant was a common carrier, yet it does show in brief and intelligible form that the plaintiff was “a passenger upon defendant’s railway” and that the injuries of which he complains were “proximately caused by the negligence of the defendant’s servants in and about the carriage of the plaintiff as a passenger of the defendant.” A common carrier of passengers is one who is engaged in a public calling, which imposes upon him the duty to serve all without discrimination. 6 Cyc. 533. Put he need not be a common carrier in order to make him liable for negligent injury to his passenger whom he, actually accepts and undertakes to carry. For instance, if a railroad company permits a passenger to ride upon a freight train, it is liable to him for negligently injuring him, although ¡not required to transport the passenger on such train, and not a common carrier of passengers as to that means of transportation. — L. & G. N. Ry. Co. v. Irvine, 64 Tex. 529, 535, and authorities there cited; Whitehead v. Railway Co., 99 Mo. 263, 11 S. W. 751, 6 L. R. A. 409.

Giving count A a reasonable construction free, from narrowness or mere verbal criticism, we hold that it at least showed plaintiff was accepted as a passenger of the defendant, and that defendant undertook the service of carrying him as such passenger. Upon those facts, the duty not negligently to injure him arises; and, the complaint averring that deferidant’s servants in and about the service of carrying him, by their negligence injured- lii.m, the count states a cause of action, and was not open to any of the grounds of demurrer assigned to it. It was not necessary to aver that defendant was a common carrier; that is, was required to carry all who applied for transportation. If was sufficient to make it appear that at the time of the injury plaintiff was actually a passenger and was being transported as such, and that his injuries were due to the negligence of defendant’s servants as averred in count A. Pro hac rice, defendant was a carrier, owing to plaintiff the dutv of that relation. — Atlantic & Pac. R. R. Co. v. Laird, 7 C. C. A. 489, 58 Fed. 760. The word “passenger,” ex ri termini, means “one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier, on the. payment of fare or that which is accepted as an equivaqlent therefor.” — Penn. R. R. Co. v. Price, 96 Ala. 256; Railroad Co. v. Tanner, 100 Va. 379, 41 S. E. 721; 6 Words & Phrases Judicially Defined, 5218, 5219. Some of the authorities assert that the word, when used in reference to carriage by a railroad, imports a person whom said transportation agency in the performance of its duty as a common carrier has contracted to carry. — Patterson’s Ry. Accident Law, 204; Schepers v. Railroad Co., 120 Mo. 665, 29 S. W. 712. The exigencies of this case do not require us to go that far, and we reserve our opinion upon that proposition until it becomes necessary to decide it.

Upon the foregoing considerations, count A must be held to have been good] and count B falls Avithin the influence of the same principles. No error appearing, let the judgment be affirmed.

Affirmed.

All the Justices concur.