B'ham Ry. L. & P. Co. v. Barrett

SOMERVILLE, J. 1. It is well settled that, when a complaint for personal injuries specifies particular acts or omissions of the defendant as constituting the negligence upon which the action is founded, the complaint is insufficient on apt demurrer, unless such acts in themselves show or suggest negligence, and a general averment of negligence does not cure the defective specification. — Birmingham O. & M. Co. v. Grover, 159 Ala. 276, 281, 48 South. 682; B. R., L. & P. Co. v. Bennett, 144 Ala. 372, 39 South. 565. But where the complaint merely states the fact and res gestae of the injury, not imputing the defendant’s negligence to them, and without specifying the negligent acts or omissions relied on, a general averment that the plaintiff was injured as a proximate result of the negligence of the defendant in respect to the duty owed to the plaintiff is Sufficient. And this principle, of course, applies to counts for wanton as well as for simple negligence. Of this character are the cases of B. R., L. & P. Co. v. Jordan, 170 Ala. 535, 54 South. 280, and B. R., L. & P. Co. v. Gonzales, 61 South. 80, Avhere the complaints Avere substantially like the first count of the complaint in the instant case. On the authority of those cases we hold that both counts of this complaint Avere sufficient, and that the demurrers thereto were properly overruled. 2. The second count, after alluding to the wantonness of defendant’s servants or agents (in the plural), charges that Avhile acting within the line and scope of “his” employment “he” Avantonly inflicted, etc. This, — 280 — however, is a mere grammatical slip, perhaps a typographical error, and, if a demurrable defect at all, is not reached by the grounds of demurrer exhibited. 3. At plaintiff’s request the trial court gave to the jury the following charge: “It is the duty of a street car company to exercise the highest degree of care known to human skill and foresight in regard to the carriage of its passengers, and the carrier is liable for the slightest degree of negligence.” A charge that “the law requires the highest degree of care and diligence and skill by those engaged in the carriage of passengers by railroads known to careful, diligent, and skillful persons engaged in such business” was approved in M. & E. Ry. Co. v. Mallette, 92 Ala. 209, 215, 9 South. 363, 365, with the observation of McClellan, J., that “this is the universal doctrine of the courts and text-writers.” In A. G. S. R. R. Co. v. Hill, 93 Ala. 514, 520, 9 South. 722, 724 (30 Am. St. Rep. 65), it was said that “the law imposes upon common carriers the duty of exercising the highest degree of care, skill, and diligence in the transportation of passengers, and holds them responsible for the consequences of the slightest negligence resulting in injury,” and a charge that the law requires “strict diligence” of such carriers was held to be well within the rule. In G. & A. U. Ry. Co. v. Causler, 97 Ala. 235, 12 South. 439, after citing the foregoing and other cases and several leading text-writers, the conclusion was: “We adhere to the principle so often stated by this court, and hold that only skillful and reasonably prudent persons should be placed in control of, or in responsible positions on, trains which transport passengers for hire, and that the highest degree of care and diligence is exacted of them in the performance of their several duties and functions. The slightest negligence on their part caus — 281 — ing injury to a passenger will render the railroad company liable.” In that case a charge imposing liability on the carrier “because its agents failed to take all such precautions to avoid the injury as would be suggested by the highest degree of care, skill and diligence, by men of extraordinary care, shill and diligence in carrying passengers by dummy line railways,” was held erroneous on account of the two exacting requirement of the italicized clause. /The Alabama cases are again reviewed by Justice Denson in Southern Ry. Co. v. Burgess, 143 Ala. 364, 42 South. 35, and a charge that the carrier owes to passengers “the duty to exercise the highest degree of care, skill, and diligence known to very careful, skillful, and diligent persons engaged in like business” was held not erroneous. In Southern Ry. Co. v. Cunningham, 152 Ala. 147, 44 South. 658, a charge that the carrier is bound “to exercise the strictest vigilance and the highest degree of care * * * that the means of conveyance employed and the circumstances would permit” was approved. In Irwin v. L. & N. R. R. Co., 161 Ala. 489, 50 South. 62, 135 Am. St. Rep. 153, 18 Ann. Cas. 722, it was said by Mayfield, J., arguendo: “The law is very strict and stringent as to the duties it imposes upon common carriers for the safety of passengers; * * [but] every passenger must and does assume the risks incident to the mode of travel he selects, when they cannot be avoided or prevented by the utmost care and skill on the part of the carrier.” The carrier was there held not liable for injury to its passenger from a missile thrown through the car windoAv, because such an assault could not have been reasonably anticipated or provided against. So in Ala. City, etc., Ry. Co. v. Sampley, 169 Ala. 372,-53 South. 142, it was said, by Sayre, J., that “common carriers — 282 — are obliged, not only to carry passengers safely, but also to conserve by every reasonable means tbeir comfort and safety throughout the journey.” From the several decisions above referred to we deduce these principles: (1) Common carriers of passengers are bound, with respect to their undertaking to safely carry them, to exercise the highest degree of care, skill, and diligence, and are liable to passengers for the slightest degree of’ negligence proximately resulting in injury to them. (2) The “highest degree” of care, skill, and diligence is a relative term, and means the highest degree required by the law in any case where human safety is at stake, and the highest degree known to the usage and practice of very careful, skillful, and diligent persons engaged in the business of carrying passengers by similar means and agencies. (3) It does not mean that every possible or conceivable care and precaution which might increase, or even assure, the safety of the passenger, must be taken, but only such as are reasonably practicable under the circumstances; i. e., reasonably consistent with the practical operation of the carrier’s business. These principles are in full accord with the general, if not universal, consensus of judicial opinion. — 6 Cyc. 591, b; 2 White’s Personal Injuries on Railroads, p. 583; 2 Hutchinson on Carriers (3d Ed.) §§ 893-896; 2 Wood on Railway Law, §§ 301-313; á Elliott on Railroads (2 Ed.) 1585. We are satisfied that the language of the ¡charge under consideration, though somewhat inapt and obscure in meaning, exacts of carriers a higher degree of care than the law requires of them, and that the trial court erred in thus instructing the jury. Obviously many things conducive to safety may be known to human skill and perceptible to human foresight, and yet the most careful and skillful carriers may seldom — 283 — or never use such means or precautions because they are entirely impracticable, and wholly inconsistent with the rational operation of their business. We note that this identical charge was before the Court of Appeals in another branch of this same case (B. R., L. & P. Co. v. Barrett, 4, Ala. App. 247, 58 South. 760), and was condemned by that court. A clear and correct discussion of the matter will be there found in the opinion of Pelham, J. The second written charge given for plaintiff required a verdict for her if the jury found that “the material averments” of the first count were true, and that she was not guilty of contributory negligence. If this charge had any tendency to mislead the jury as to the proof of plaintiff’s case, defendant should have requested an explanatory charge. The generality of the allusion to contributory negligence was favorable to defendant, and it cannot complain thereat. The third and fourth written charges state correct propositions of law, and were properly given. The fifth written charge in effect instructs the jury that any starting or stopping of the car with a sudden or unusual-jerk or movement while plaintiff was alighting from the car at any point, whether a stopping place or not, and whether known to defendant’s servants or not, was per se actionable negligence if it proximately injured plaintiff. As several times declared by this court, such movements are not per se negligent, and their culpability depends upon the circumstances of time and place, or of knowledge of defendant’s responsible agents that they may injure an exposed passenger.- — Mobile L. & R. Co. v. Bell, 153 Ala. 90, 45 South. 56; B. R., L. & P. Co. v. Parker, 156 Ala. 251, 47 South. 138. It seems clear that the giving of this charge was prejudicial error. — 284 — It was competent for defendant to ask its witness Wrenn to “state whether or not Mr. Eubank got off the car before or after Mrs. Barrett (the plaintiff) fell.” The witness had stated that Eubank got off the car at the same place plaintiff did, and about the same time; and he had first stated that the car was stationary when Eubank alighted, but afterwards that it was then moving. The relation of the fact inquired for to the issues involved is obvious and direct, and the question should have been allowed. Other assignments of error need not be noticed. For the errors pointed out, the judgment will be reversed and the cause remanded. Reversed and remanded. All the Justices concur, except Dowdell, C. J., not sitting.