I concur in the reversal for the reasons following:
In actions to recover damages resulting from negligence, it is incumbent upon the plaintiff to show that the defendant owed him a duty, that there was a breach of such duty, and that as a proximate consequence plaintiff suffered the injury of which he complains. While general averments as to the breach of the duty such as that the act or omission causing the injury was negligently done or omitted will suffice, a complaint, to withstand appropiate demurrer, must state facts upon which the law raises and defines the duty owing from the defendant to the plaintiff, and to this end the facts stated must either relieve the plaintiff of the imputation that he was a wrongdoer, or show that the injury was the result of negligence occurring after the discovery of peril. Walker v. A., T. N. R. R. Co.,194 Ala. 360, 70 So. 126; G. A. W. Co. v. Julian, 133 Ala. 371,32 So. 135; B. R., L. P. Co. v. Adams, 146 Ala. 270,40 So. 385, 119 Am. St. Rep. 27; Postal Telegraph Co. v. Jones, 133 Ala. 225, 32 So. 500; B. R., L. P. Co. v. Fox,174 Ala. 665, 56 So. 1013; L. N. v. Holland, 164 Ala. 73,51 So. 365, 137 Am. St. Rep. 25; Sloss-S. S. I. Co. v. Weir, 179 Ala. 227, 60 So. 851; L. N. R. Co. v. Ganter, ante, p. 323, 77 So. 917, and authorities there cited.
The complaint considered in Walker v. A., T. N. R. R. Co., supra, by averring that the plaintiff was injured through the negligence of the defendant, its agents or servants, while he was crossing the defendant's track, relieved the plaintiff from the imputation that he was a wrongdoer. It is a familiar rule of law that one may cross over a railroad track wherever he may have occasion to do so, and the act of so crossing such track is not in and of itself negligence, nor does it constitute the person so crossing a wrongdoer or trespasser. Stringer v. R. R. Co., 99 Ala. 397, 13 So. 75; Glass v. Railroad Co., 94 Ala. 587,10 So. 215; A. G. S. R. Co. v. Linn, 103 Ala. 134,15 So. 508; 4 Mayf. Dig. p. 632, §§ 361, 362.
In considering the complaint in this case in the face of the demurrers we must assume that the pleader has stated his case as favorably as the facts will justify, and its averments cannot be aided by implication or intendment. All such must be resolved against the pleader. Walker v. A., T. N. R. R. Co., supra; N.C. St. L. v. Blackwell, 79 So. 129.1 Or, as the rule has been otherwise stated, "pleadings are on demurrer to be construed most strongly against the pleader, and must negative every reasonable adverse intendment." If we allow the averment to be true, but at the same time a case may be supposed consistent with it which would render the averment inoperative, such case will be presumed or intended, unless excluded by particular averment. Williams v. Tyler, 14 Ala. App. 606,71 So. 51; Scharfenburg v. Decatur, 155 Ala. 654,47 So. 95; Argo v. Sylacauga Merc. Co., 12 Ala. App. 442,68 So. 534; Kershaw v. McKown, 12 Ala. App. 485, 68 So. 559.
The only facts averred as matters of inducement, for the purpose of showing and defining the duty owed by the defendant to the plaintiff, are:
"That on said date and in the nighttime, he [plaintiff] was driving along a road which was generally used by the public, and was driving in a buggy drawn by a mule, and the defendant was also driving along said road in an automobile."
There is nothing in these averments showing that plaintiff had the right to use this road, or that relieved him from the imputation that he was a wrongdoer; non constat the road may have traversed the property of the defendant, and its alleged use may have been without his knowledge or consent, so that when these intendments are resolved against the plaintiff, his position is not as favorable as that of a licensee, but he is in the position of a trespasser. It is elementary that the mere use of private property by the public without claim of right, and without the knowledge or consent of the owner, can never ripen into a right or relieve the users of the imputation that they are trespassers. Jones v. Bright, 140 Ala. 268, 37 So. 79. The complaint was subject to the fourth ground of demurrer, and the court erred in overruling this demurrer.
In addition to the general issue, the defendant filed special plea 3, which sets up facts appropriate to a plea of contributory negligence. On motion of the plaintiff this, with the special pleas, was stricken on the ground, as stated in the judgment of the court, that said pleas are covered by the plea *Page 464 of the general issue, and on the trial of the case evidence was offered and received without objection tending to support the facts as stated in plea 3.
In the oral charge of the court we find this expression:
"In answer to that the defendant says that those facts were untrue, and the burden is cast upon the plaintiff to prove to your reasonable satisfaction these facts. The defendant says further that 'even though I admit that I was negligent,' which of course he does admit for the sake of defense in this case, he says that the injury to the plaintiff was not caused by his negligence, but because plaintiff was drunk, and that he fell from the buggy in that condition, which, if true, would be a complete defense to the plaintiff's complaint in this case. That is the issue in this case for the plaintiff and for the defendant."
These rulings of the court clearly show that the defense of contributory negligence was submitted to the jury, and under the repeated rulings of the Supreme Court and of this court, although this is a defense which should be specially pleaded, it is incumbent upon us to review the case as though the defense was specially pleaded. Atl. Coast Line Ry. Co. v. Kelly, 77 So. 972;2 Richmond Danville R. R. Co. v. Farmer, 97 Ala. 141, 12 So. 86; K. C., M. B. v. Burton,97 Ala. 240, 12 So. 88; Gainer v. Southern Ry. Co., 152 Ala. 186,44 So. 652.
The special charges given at plaintiff's request are not numbered in the record, and we find it impractical to deal with them specifically. However, we note that the charge second in order on page 23 as set out in the bill of exceptions, and appearing first in order on page 33 of the record proper, authorized plaintiff to recover for injuries resulting from his own negligence. The other charges given at the instance of the plaintiff authorized a recovery notwithstanding the jury may have found that the plaintiff was guilty of negligence contributing to his injury. Some of the charges requested by the defendant and refused, relative to the defense of contributory negligence, should have been given.
For these errors, the judgment was properly reversed, and the application for rehearing is therefore overruled.
Application overruled.
SAMFORD, J., concurs in the reversal.
1 201 Ala. 657.
2 Ante, p. 360.