Birmingham Railway, Light & Power Co. v. Glover

McCLELLAN, C. J. It is sufficient in a complaint by a passenger against a. railway company claiming damages for personal injuries to aver that the defendant negligently operated its train and that thereby or in consequence thereof the plaintiff was injured,’ etc., etc The charge of negligence made by the first count is suf ficient. The 3rd count of the complaint avers that plaintiff was a passenger on defendant’s electric street car, and “had informed the defendant’s servant, the conductor or mo forman of said car, of his purpose and desire to alight from said ear at or near Avenue A and 20th Street; that it was and then became the duty of defendant’s servant after slackening and reducing the speed of said car not to increase the speed of said car until plaintiff had alighted from said car or. had had reasonable opportunity to alight from said car; that notwithstanding said duty, the defendant’s servant negligently, suddenly and greatly increased the speed of said car before plaintiff had alighted therefrom and before plaintiff had had reasonable opportunity to alight therefrom; plaintiff says that as a proximate consequence of said negligence, plaintiff’s body Avas caused to leave or be throAvn from said car..and to strike the street Avith great force and violence causing plaintiff to suffer the injuries and damages set forth in the first count of this complaint.” This count is faulty for .assuming instead of alleging that defendant’s servant slackened the speed of the car upon being informed that plaintiff desired to alight from it.. It should also have alleged that it ivas the servant’s duty to decrease the speed thin and there. But the demurrer does not point out these omissions, if indeed they be material. The objection which was taken by the de-. murrer, avc do not think tenable. The count- does allega that the servant did negligently, greatly and suddenly increase the speed, that lie OAved plaintiff the duty to re [498] frain from so increasing it, and that this negligent violation of this duty caused plaintiff’s fall and injury. Under the rule which obtains in this court in this class of cases and admits of the most general averments of causal negligence — “little if at all short of mere conclusions” — we must hold the averments good. The 5th count after stating plaintiff’s relation of passenger to' defendant, etc., etc., and the duty of the servant to plaintiff not to increase the speed of the car after being advised that plaintiff desired the car* stopped that he might alight, etc., etc., proceeds as follows: “Plaintiff says that- the said motorman, the defendant well knowing that plaintiff was seeking to alight and well knowing that a sudden jerk would probably throw plaintiff from the car with wanton, willful or reckless négligence, suddenly increased the speed of said car and as a proximate consequence thereof” plaintiff was thrown from the car,-etc., and injured, etc., etc. The thing here alleged that would and that defendant knew would probably cause plaintiff to fall is a “sudden jerk” of the car. It was not alleged that the motorman caused a sudden jerk of the car. The averment is that he “suddenly increased the speed of the car.” A sudden increase of speed may cause a. sudden jerk of the car or it may not; it depends upon the degree of sudden increase. Any increase of speed is necessarily sudden in a sense: it is a thing of the instant; but it does not imply such violent and immediate great increase as jerks the car. So that this count, especially when construed most strongly against the pleader, does not aver that the motorman willfully, wantonly or recklessly did the thing which to his knowledge would probably cause plaintiff to fall, but to the contrary, that he did a thing, which so far as the count shows, he had no reason to believe would injure the plaintiff. The count does not in terms aver that the motorman wantonly, willfully or recklessly caused plaintiff’s fall, and that conclusion cannot be reached from his -willfully, wantonly or recklessly doing an act that was not likely or to his knowledge liable to produce that-result. Hence we conclude that this count does not [499] present a charge of willful or wanton injury, hut of a merely negligent injury; and it follows that the pleas of contributory negligence answered this as well as the other counts, and the demurrer to them, which proceeded on the ground that contributory negligence was no defense to the 5th count, etc., should have been overruled, the count is also inapt if not affirmatively bad as one for willful injury inflicted by the motorman, for that it, in fact, avers — though we have assumed the contrary in the foregoing discussion' — not that he, the motorman, had knowledge of the probable disastrous consequences of his act, .but that the defendant had such knowledge.' The knowledge of the defendant in its corporate capacity or by some other servant than the motorman cannot thus be made to characterize as willful, and the like, an act on the part of the motorman which is not willful, or the like, in the absence of knowledge by him. For the plaintiff to have stepped off the car while it was going at the rate of speed some of the evidence tends to show it was going, and in the manner some of the evidence tends to show he did step off, i. e., by walking off backwards, or, as other evidence tends to show, Avith his face towards the rear of the car, would have been negligence as a matter of laAV. Charge 5 should therefore, have not been given for the plaintiff. We find no error in the other rulings of the court on request for instructions. It is unnecessary to consider the motion for a new trial. Reversed and remanded. Tyson, Simpson and Anderson, J.J., concurring.