Plaintiff, appellee here, received an injury to his hand on one of defendant's cars while attempting to board the same, and brought this suit to recover damages therefor. The cause was tried upon count 2, pleas of general issue, and contributory negligence, resulting in judgment for plaintiff, from which defendant prosecutes this appeal.
Count 2 will appear in the report of the case. Its sufficiency was challenged by appropriate demurrer. The rule of course is well understood that pleading is to be construed most strongly against the pleader. It will appear that the count does not allege that the car was being operated by defendant for the carriage of passengers, nor is it averred that defendant is a common carrier of passengers for hire. It is to be noted also that the count fails to aver that plaintiff was a passenger or intended to become such; this is left entirely to be inferred. Jefferson Co. v. Gulf Ref. Co., 202 Ala. 510,80 So. 798. The count therefore is defective in failing to show such relationship between the parties, out of which a duty arose to the plaintiff, and the breach of which duty must constitute the foundation of the cause of action. The demurrer should have been sustained. N. B'ham Ry. Co. v. Liddicoat,99 Ala. 545, 13 So. 18; B'ham Ry. Co. v. Mason, 137 Ala. 342,34 So. 207; Southern Ry. Co. v. Johnson, 144 Ala. 365,39 So. 376, 113 Am. St. Rep. 48; B'ham Ry. Co. v. Littleton,201 Ala. 141, 77 So. 565; B'ham Ry. Lt. P. Co. v. Anderson, 3 Ala. App. 424, 57 So. 103; Tenn. Coal Iron Co. v. Smith, 171 Ala. 251, 55 So. 170.
Counsel for appellee seek to save the cause from reversal by the application of rule 45 (61 South. ix2), as construed by this court in the following recent authorities: Best Park Amus. Co. v. Rollins, 192 Ala. 534, 68 So. 417; Taylor v. Lewis (Ala. Sup.) 89 So. 581;3 Vance v. Morgan, 198 Ala. 149, 73 So. 406; Clinton Min. Co. v. Bradford, 200 Ala. 308, 76 So. 74; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; B'ham South. Ry. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339.
In view of the rule that pleadings are to be construed most strongly against the pleader, and the further rule that, in actions of this character, the complaint should state facts from which a duty from defendant to plaintiff follows as a matter of law (Tenn. Coal Iron Co. v. Smith, supra), the writer is of the opinion that the complaint on this appeal fails to state a cause of action, as it fails to establish or express a breach of duty owing by defendant to plaintiff, and prefers to rest his conclusion for a reversal of the cause upon this ground. The other members of the court participating in the consultation of this cause, while seriously questioning the sufficiency of the count to state a cause of action, yet do not commit themselves to that conclusion but prefer to rest their concurrence in the reversal upon the following ground. None of the cases previously decided by this court giving application to the foregoing rule, have had for consideration a count so fatally defective as that here presented, and upon which alone the cause of action was tried. But in any aspect of the case, this cause cannot be said to be within the influence of the foregoing authorities last cited. There was no clear and specific proof of the facts upon which the omitted averments must rest, nor were these matters specifically charged by the court to the jury. The utmost that may be said, both as to the proof and instructions by the court to the jury, was that this relationship and the duty arising therefrom appeared to have been assumed. Under these circumstances, therefore, we are of the opinion that the case cannot be brought within the influence of rule 45, so as to save the cause from reversal.
Let the judgment be reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.
2 175 Ala. xxi.
3 206 Ala. 338. *Page 111