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

McCLELLAN, J. The only assignments of error insisted upon in brief relate to the action of the court in overruling demurrers to counts 1, 2, 3, and A. The action is by the husband for injuries received by the wife while a passenger on the car of the appellant. The argument, common to all of the counts, for error in the action stated, is rested upon the familiar rule announced in Johnson v. B. R., L. & P. Co., 149 Ala. 533, 43 South. 33; B. O. & M. Co. v. Grover, 159 Ala. 276, 48 South. 682; B. R., L. & P. Co. v. Parker, 156 Ala. 251, 47 South. 138; R. R., L. & P. Co. v. Weathers, 164 Ala. 32, 51 South. 303 (among others to like effect), that a general averment of negligence (where permissible) is restricted, in its effect, to the particular facts alleged as affording the basis or bases for the negligence so generally charged; and, if the particular facts alleged do not justify the conclusion of negligence therefrom, the count is demurrable. None of the counts here under view are subjects of the application of that rule. Aside from matters of inducement and of averment of relation between the party injured and the defendant, counts charging negligence may, and very often do, contain two distinct features, viz.: (a) One descriptive of the means of injury and of the physical circumstances surrounding and attending the injury, and (b) another, ascribing the injury to [516] negligence for which the defendant is responsible. Unless, as was ruled in the P-arker Case, supra,, there is language in a count which constricts, contracts, the general averment of negligence to acts or omission described in the count, but which does not justify the conclusion of negligence so sought to be drawn by the pleader in general, though referable, terms, the stated first feature (lettered “a”) does not contract the general averment of negligence, for the obvious reason that the former only describes the means of injury and the physical circumstances surrounding and attending the injury, and not the culpable act or omission of defendant or of the defendant’s servants, which the law terms “negligence It was so soundly decided in B. R., L. & P. Co. v. Jordan, 170 Ala. 530, 54 South. 280. In many recent decisions here similar counts have not been found subject to the rule asserted by the demurrant in this instance. It is also urged for appellant that the words “as aforesaid,” concluding all the counts but that numbered 1, should be accorded the effect to refer the general averment of negligence to the particular facts previously alleged in the counts, as was the process in the Weathers Case, supra. A comparison of the count so interpreted in the Parker Gase and those here under view readily discloses that the words “aforesaid,” in these counts, do not refer to the general averment of negligence, but to the passenger’s destination as averred in counts 2 and 3, and to the relation (of passenger) which the plaintiff’s wife, when injured, bore to the defendant as averred in count A. Count 1 does not contain the words “as aforesaid.” No error appearing, the judgment is affirmed. Affirmed. All the Justices concur; Dowdell, C. J., not sitting.