American Ry. Express Co. v. Reid

BOULDIN, J. American Railway Express Company, by its local agent and employees, unloaded from an express car onto a truck a steel shaft, cylindrical in form, some 15 to 16 feet long, about 2% inches in diameter and weighing about 925 pounds. The truck,, with the shaft thereon, was moved some 50 to 75 feet and left standing upon the cement platform of the Louisville & Nashville Railroad in Georgiana. Edgar Reid, 15 years of age, acting at the time as a newsboy, came to the station to get his newspapers and found them scattered upon the platform near the truck. While there, the heavy shaft, for some cause, rolled off the truck and struck plaintiff, resulting in a compound fracture of his leg. The suit is for personal injuries, and counts upon negligence in that the shaft was so carelessly, insecurely, and negligently placed on the truck that it rolled off and injured the plaintiff. The demurrers challenge the complaint for failure to show any duty toward the plaintiff. The duty of care being shown, a general averment of negligence is sufficient. But such facts must be averred as disclose a duty owing by the defendant to-the plaintiff to do or not to do the thing complained of as the proximate cause of the injury. Cook v. Sheffield Co., 206 Ala. 625, 91 So. 473; Montgomery Light & Water Power Co. v. Thombs, 204 Ala. 678, 87 So. 205; Mobile Light & R. Co. v. Ellis, 207 Ala. 109, 92 So. 106; Birmingham Ry. Light & Power Co. v. Cockrum, 179 Ala. 372, 60 So. 304; Sloss-Sheffield Steel & Iron Co. v. Weir, 179 Ala. 277, 60 So. 851; Snyder Cigar & Tobacco Co. v. Stutts, 214 Ala. 132, 107 So. 73; Feore v. Trammel, 212 Ala. 325, 102 So. 529; Demopolis Tel. Co. v. Hood, 212 Ala. 216, 102 So. 35; Birmingham, E. & B. R. Co. v. Stagg, 196 Ala. 612, 72 So. 164; Western Ry. of Alabama v. Mays, 197 Ala. 367, 72 So. 641; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; Southern *482 Cotton Oil Co. v. Woods, 201 Ala. 553, 78 So. 907. Under this rule it is sufficient if facts are alleged from which the law implies a duty of care toward the plaintiff. Such case appears where the wrongful or negligent act charged shows a breach of duty toward any and all persons that may be injured thereby. Thus, leaving an explosive bomb in a public alley is a breach of duty, implied by law, not to endanger persons in position to be injured by its explosion. Wells v. Gallagher, 144 Ala. 367, 39 So. 747, 3 L. R. A. (N. S.) 759, 113 Am. St. Rep. 50. The general duty not to negligently set fire to the property of another appears to be the basis upon which the court sustained count 2 in Louisville & N. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 251, 28 So. 438, 50 L. R. A. 620. So counts charging wanton injury need not aver any special relation out of which the duty of care arises. It is the common duty of all persons not to wantonly injure the person or property of another. Southern R. Co. v. Gantt, 210 Ala. 383, 388, 98 So. 192; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469. In the present case, the negligence relied upon is in the creation of a danger zone about the standing truck. As a condition for such actionable negligence it must appear the truck was at a place where defendants owed some duty toward plaintiff. If on defendants’ premises and plaintiff a mere trespasser, no such duty would arise. Under the general rule that pleadings must he construed most strongly against the pleader when, challenged by apt demurrer, it must be held both counts of the complaint were defective for failure to aver sufficient facts to show a duty of care for the safety of the plaintiff at the time and place of the injury. The case of Birmingham Ry., Light & Power Co. v. Cockrum, 179 Ala. 372, 60 So. 304, is not at variance with, hut clearly states the rule above applied. Count 3 in that case averred plaintiff was not a trespasser. The case is authority for the rule that if the plaintiff is shown not to be a trespasser on defendants’ premises, it need not appear plaintiff was rightfully on the premises of another— sufficient if he was rightfully there so far as concerns the defendants. Without dispute in the evidence, the place of the injury was upon the public platform of the. railroad company. The plaintiff was there in the lawful conduct of his business, although this was not essential to his right of protection against negligence of the defendants at that place. The defendant Stewart, in person and as local agent of the express company, defendant, had full knowledge at the time of the place and fact of injury; had superintended the placing of the shaft on the truck, and moving the truck to the place of- injury. That the injury was in fact at a place where defendants owed plaintiff the duty of ordinary care, and that this was known to defendants when suit was brought is not questioned. “Hereafter no judgment may be reversed * * * for error as to any matter of pleading * * * unless in the opinion of the court to which the appeal is taken, * * * after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.” Supreme Court'Rule 45. This rule is invoked by the appellee. Its application has been many times considered by this court. In Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929, a case based upon the law of respondeat superior, the complaint was held defective for failure to aver the negligent agents were acting within the scope or course of employment, but error in overruling demurrer was held to be cured by instructions specially requiring proof of the omitted allegation. In Jackson v. Vaughn, 204 Ala. 543, 545, 86 So. 469, 471, discussing rule 45, it was said: “Under the mandate of this rule the fate of any judgment in a civil case that is tainted with error in the pleadings or procedure leading 'thereto is dependent upon what is disclosed by the entire record in that particular case. That is to say, each case stands upon its facts, and, of necessity, no iron-clad principle can be announced of the construction to be placed on this rule. However, we may say' that under it our court has declared generally that if a complaint (not so fatally defective that a judgment based thereon would be arrested on motion) or a plea in a civil cause be defective for the reason that a necessary allegation is omitted, and a demurrer pointing out this defect has been improperly overruled, the judgment following will not be reversed on this account if the entire record discloses that the trial court by an appropriate charge instructed the jury specifically as to the necessity of proving the omitted allegation, and the record further shows that this omitted allegation was proved and considered.” Ih Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 601, 81 So. 341, the complaint was held insufficient in failing to show such right of possession in a bailee as will support an action by him for injury to the property. The court said: “The averment of fact improperly omitted from the complaint, as the demurrer pointed out, was indisputably proven, from which it resulted that the erroneous overruling of the demurrer was rendered innocuous to the defendant.” In Southern R. Co. v. Dickson, 211 Ala. 481, 485, 100 So. 665, 668, it was said: “But negligence comprehends and rests upon a breach of duty; and, when the injurious act is specified, it must be made to appear, either from the nature of the act, or from the accompanying circumstances, that a duty existed of which the act complained of was a breach. “VVe *483 think the complaint was subject in this respect to the apt ground of demurrer interposed. “We cannot, however, for this cause, reverse the judgment, for the reason that the omitted allegation was nevertheless made an issue on the trial, and the jury were clearly and specifically instructed (by charges 20, 22 and 23) that plaintiff could not recover unless he showed that the engineer operating the train ‘knew, or in the exercise of reasonable .care ought to have known, that the plaintiff was in or would probably be in a position of peril at the time the jerk and shock was caused, if it was caused.’ Under the rule declared in Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417 [Ann. Cas. 1917D, 929], and a long line of cases following it, the error in overruling the demurrer must be held as cured by the clear instructions requiring proof of the omitted allegation. That such a complaint states a cause of action, notwithstanding the omission of this allegation, -was held in Southern Ry. Co. v. Carter, 164 Ala. 103, 51 So. 147.” It will be noted the defect in that case was the failure to aver the facts out of which the duty of care arose. We consider it a direct authority on the question now before us. Navco Hardwood Co. v. Bass, 214 Ala. 553, 557, 108 So. 452. The complaint here states the quo modo of the accident in that it resulted from the shaft rolling off the truck, that the shaft was placed in this unsafe and insecure position by the negligence of defendants, and that the injury resulted proximately from such negligence. Without question a charge of negligence and injury resulting proximately therefrom imports a breach of duty toward plaintiff. It is not a case of amending the pleading by the evidence in' the sense of supplying a necessary element of the cause of action, or allowing a recovery upon evidence not within the issues made by the pleadings. The fault of the complaint is not the failure to allege a breach of duty, but in failure to show how the duty arose, failure to name the place as a public one in which defendants owed a duty not to create a zone of danger. Hie defect is in its generality. It fails to meet the demands of good pleading in that it does not properly advise defendants of the manner in which the alleged breach of duty arose. But of this they were already advised. Under the undisputed evidence we may say it affirmatively appears there was no surprise or injury because of failure to aver the place of the accident. If rule 45 does not apply to such case, it is difficult to conceive a case to which it does apply. It is not a case of entire failure to state a substantial cause of action, available in arrest of judgment. Code of 1923, § 9512; Parker v. Abrams, 50 Ala. 35; 34 C. J. p. 37, § 163, note 69. The evidence for plaintiff was to the effect that after the truck was left standing on the platform for some minutes, and while the plaintiff was near the truck gathering up his newspapers, the shaft, without outside agency, rolled off and crushed his leg. That for the defendants was to the effect that the plaintiff and his witness, Alderman, were lifting at the shaft and caused it to roll off the truck. The complaint, properly construed, does not charge the injury resulted from the act of placing the shaft on the truck, but from placing it there so negligently and insecurely that it rolled off. No material variance between allegations and proof appears. Appellants rely upon the natural law of inertia as a basis for the affirmative charge or in support of the motion for a new trial. The contention is that a body balanced or at equilibrium, and so remaining several minutes, cannot and will not move without external force and plaintiff has failed to show any external force for which defendants are responsible—that plaintiffs evidence to the effect that it moved without perceptible cause is unreasonable and should be disregarded as in conflict with natural law. Reliance is placed on Klitzke v. Webb, 120 Wis. 254, 97 N. W. 901. In that ease a door weighing 68 pounds, 7 feet high, was leaning against the wall of a house, the base resting IS inches from the wall. On these undisputed facts it was declared the plaintiff’s evidence that the door fell over without pressure from wind or other agency was to be disregarded. In that case the perpendicular from the center of gravity would fall some 9 inches within the base, the pressure or weight against the wall must be overcome, and the center of gravity raised as the top of the door was thrown outward. The case of a smooth, hard, ‘metal cylinder resting upon a smooth surface is wholly different. The base is a mere line, or series of points of contact in line. A very slight inclination of the supporting surface may throw the line of gravity without the base and start it in motion. That it had remained motionless for some minutes does not conclusively establish that it did not start rolling from natural causes. It was for the jury to say whether it did roll off as testified by plaintiff and his witnesses. It seems admitted that the witness, Shell, seeing the shaft balanced diagonally across the truck, warned Mr. Stewart, the express agent, that it was dangerous, and that Stewart placed in cinder, according to Shell, or pebbles, according to Stewart, alongside the shaft. If, notwithstanding this obstruction, the shaft did roll off as claimed by plaintiff, it was also a question for the jury as to whether 'reasonable care was taken to place an obstruction that would wedge against the smooth metal surface and afford proper resistance. There was no duty on plaintiff to show what physical facts or natural forces actually caused the shaft to start in motion. Another assignment of error relates to *484 the ruling of the trial court on argument of counsel. The record recites: “In his closing argument to the jury, Mr. 0. E. Hamilton, one of the attorneys for the plaintiff, stated: ‘We are asking simply for justice which this boy is entitled to. And we are going to insist that he is entitled to some good round sum. It doesn’t make any difference to the American Express Company, this defendant. What difference does it make to them what your verdict in this case is? They will still be running to Georgiana.’ The defendants objected to this argument. The court sustained the objection. Mr. Hamilton then stated: T withdraw the argument.’ Mr. Hamilton then stated: ‘Gentlemen of the jury, I still insist that the American Express Company will still be in business whatever your verdict in this case is.’ The defendants then and there objected to this argument by Mr. Hamilton, the attorney for the plaintiff; the court overruled the objection; and, to the action of the court in overruling the objection, the defendants then and there duly and legally excepted.” The remarks withdrawn were an appeal for a large 'verdict upon the assumed ability of the corporate defendant to pay. Such is the clear import of a direct statement that it “doesn’t make any difference to the American Express Company.” The'further remarks after these were withdrawn were in effect a restatement of the same line of argument, based upon the same assumption.' To assume that the jury would not so regard it would impeach their intelligence. Coming from eminent counsel and sustained by the ruling of the trial judge, they were well calculated to influence the amount of the' jury’s verdict. We would not lay down, rules which hinder or deny counsel a full and fair field in all legitimate argument, but in the zeal of the hour, the attorney is often tempted to transgress these bounds. We are not dealing with a case of argument so flagrantly abusive of the rights of the defendant as to be ineradicable by prompt and careful warning and instruction from the court, but a case in which objection was overruled. It is hardly necessary for us to state the manifest rule that in an action for actual damages the amount of a verdict cannot be properly influenced by the personnel of the defendant. Natural sympathy is very liable to find expression here. An eminent advocate and associate of the writer at the bar often and aptly said to juries that if we want to be generous, we must do so at our own expense, and not at the expense of others. It has no place in the jury box. Physical or mental pain and suffering, though not permanent, are elements of actual damages for which no accurate measure can be fixed. Much must be left to- the guarded discretion of a thoughtful jury guided by a sense of justice. The injury, though severe, so affecting the broken bone as to cause parts to slough off, and delay uniting until the time of the trial, was not shown to be one which, with proper care, will not fully heal. The permanent injury, so far as the evidence discloses, will be a more or less shortening of the injured leg. It appears probable the argument complained of found expression in the verdict for $20,000, Overruling the objection to argument was er ror. Alabama Fuel & Iron Co. v. Andrews, 212 Ala. 336, 102 So. 799; Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Alabama Fuel & Iron Co. v. Williams, 207 Ala. 99, 91 So. 879; 2 R. C. L. p. 426, § 25. For this error the judgment must be reversed and the cause remanded. Reversed and remanded. All the Justices concur in the result and in the opinion, except ANDERSON, C. J., and SAYRE and GARDNER, JJ., hold the case should also be reversed for ruling on demurrer to the complaint on authority of First Nat. Bank v. Williams, 206 Ala. 394, 90 So. 340, and similar cases.