Opinion
6 Div. 422.
April 26, 1934. Rehearing Denied May 31, 1934.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
W. A. Denson, of Birmingham, for appellant.
The complaint describes the accident as occurring at a public road crossing, where plaintiff had a right to be. Defendant owed him the duty not to negligently injure him. Furthermore, under such allegations it became the duty of defendant to acquit itself of any negligence toward plaintiff. Code 1923, § 9955. It is not necessary that the quo modo as to negligence be set out. Leach v. Bush, 57 Ala. 153; Ala. Baptist Hospital v. Carter, 224 Ala. 109, 145 So. 443; M. N. R. Co. v. Williams, 219 Ala. 244, 121 So. 722; Birmingham E. Co. v. Baker, 219 Ala. 326, 122 So. 316; Mackintosh v. Wells, 218 Ala. 263, 118 So. 276; Ala. Power Co. v. Allen, 218 Ala. 418, 118 So. 662; Vulcan Rivet Corp. v. Lawrence, 214 Ala. 379, 108 So. 3. The sixth ground of the demurrer is not well taken. T. C., I. R. Co. v. Smith, 171 Ala. 254, 55 So. 170.
Chas. H. Eyster, of Decatur, and White E. Gibson, of Birmingham, for appellee.
The complaint is wholly insufficient, and the demurrers were properly sustained. Ala. Baptist Hospital v. Carter, 226 Ala. 109, 145 So. 443, 444; Kasulka v. L. N. R. Co., 213 Ala. 465, 105 So. 187; Howard v. McCarson, 215 Ala. 254, 110 So. 296; McClusky v. Duncan, 216 Ala. 391, 113 So. 250; L. N. R. Co. v. Scruggs, 161 Ala. 100, 49 So. 399, 23 L.R.A. (N.S.) 184, 135 Am. St. Rep. 114; So. R. Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 242; City D. Co. v. Henry, 139 Ala. 161, 34 So. 389; Ex parte Central I. C. Co., 212 Ala. 130, 101 So. 824; So. R. Co. v. Drake, 166 Ala. 540, 51 So. 996.
While brevity in pleading is commendable, nevertheless a complaint to withstand appropriate demurrer "should be certain and specific as to charging the relationship of the parties, the duty arising, the nature and character of the injury, as well as the cause of same." (Italics supplied.) Alabama Power Co. v. Allen, 218 Ala. 416, 418, 118 So. 662, 663; Doullut Williams v. Hoffman, 204 Ala. 33, 86 So. 73; Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443.
The only facts averred as matters of inducement are that, "on, to-wit, October 25, 1925, plaintiff, while riding in an automobile on a public highway in Jefferson County, State of Alabama, was injured at a public road crossing in said County and State as follows: said automobile collided with a train upon said public road crossing." There is nothing in these averments showing any connection or relation of the defendant, either with the train or the automobile, and therefore it does not appear what, if any, duty the defendant owed the plaintiff.
In the absence of averments showing that the defendant operated, controlled, or managed, in some way, the colliding instrumentalities, or one of them, the averment that the defendant "caused said automobile to collide with said train" is insufficient to show or even suggest actionable negligence on the part of the defendant, and the general averment that "defendant negligently" caused the collision does not cure the defect. Birmingham Ry. L. P. Co. v. Barrett, 179 Ala. 274, 279, 60 So. 262, 263; Alabama Baptist Hospital Board v. Carter, supra.
Our judgment is that grounds 2, 3, 4, and 6 were well taken, and the demurrer was properly sustained.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.