In this case, the plaintiff's petition, after alleging the names of the parties and their residences, and that the railway was a common carrier, thus states the acts of appellant upon which he relies for a recovery: "Defendant was engaged as a common carrier, engaged in running and propelling cars for conveyance of passengers and freight over the railroad owned and controlled by it, running from Dallas, Texas, into and partly across said Lamar County, to Paris, said county, and State of Texas, and over a public highway; and while so engaged, by its servants, agents, and employes, so carelessly and negligently, at the date last mentioned, at Paris, Lamar County, Texas, conducted, managed, and run said cars, that by such carelessness and negligence, which plaintiff alleges was gross carelessness and negligence on the part of defendant, while backing the engine with a car loaded with stock, to-wit, goats, attached thereto, so rapidly against another car or cars standing on the railroad track, caused a violent jolt and shock of the car loaded as aforesaid and attached to the engine as aforesaid; that at the time said loaded car struck against said car as aforesaid, plaintiff was on top of said loaded car, and that said shock or jolt was so great that plaintiff was thrown down on top of said car, and onto the footboard of the same, and rolled on top of said car so violently that he was injured." * * * Plaintiff then sets out the character of his injuries and the damage sustained.
The railway company filed a general demurrer to the petition, which was overruled, and it excepted, and has properly assigned error upon this ruling.
The petition failed to set out any good cause of action, and the demurrer should have been sustained. It is not shown what relation appellee bore toward appellant which would authorize him to recover. If he was a passenger, then the allegation that he was on the top of a car discloses such a suspicion of contributory negligence as would necessitate some explanation of his position. Railway v. Bennett, 76 Tex. 155.
If he was an employee of the company, and his duty called him to that position, this should have been set out. If he was there as a trespasser, and voluntarily placed himself on top of a car, without alleging any *Page 232 knowledge of appellant's servants that he was there, it would not be contended that he could recover. It is not shown by the petition that appellee had any right to be on top of the car, or that appellant's servants knew or ought to have known that he was there, or owed him any duty whatever. In the language of the Supreme Court in the Mayton v. Railway case, 63 Tex. 78: "The petition lacks an element which is essential to all good pleading — certainty to a common intent. It does not inform the defendant of the issue which is to be met."
Under the allegations of the petition, the defendant could safely admit all therein stated to be true, and still it would not authorize a recovery. The defective allegations of the petition are not aided by the answer.
The other errors assigned are not such as will probably arise on another trial. For the error of the court in overruling the demurrer, the judgment is reversed and the cause remanded.
Reversed and remanded.