Greene v. Louisville & Nashville R. R.

50 So. 937, 163 Ala. 138, 1909 Ala. LEXIS 491

• Court: Supreme Court of Alabama
• Decided: November 18, 1909
• Status: Published

Opinion

McOLELLAN, J.'

— The appellant grounds this action for damages upon this omission of the appellee: In “wholly and carelessly” neglecting and “negligently” failing, “as was its (appellee’s) duty in the premises,” to remove, after notice and request to do so, a car of lumber belonging to appellant, -in consequence of which breach of duty, it'is ¡averred, the lumber was ’destroyed in a fire that consumed the mill of Crescent Lumber Company, whereat, or near which, the car was loaded, and at or near which the stated negligent omission of appellee permitted the car of lumber to remain and be destroyed. The only ground of demurrer assigned was that the “complaint shows that the negligence of the defendant complained of was not the proximate cause of the injury sued for.” It is insisted by counsel for appellee that no prejudicial error could have attended the sustaining of the demurrer, because the complaint states no cause of action.

We cannot approve this contention. That it is the duty of a carrier to exercise due care and to employ reasonable diligence in the forwarding of goods committed to it for conveyance cannot be doubted. The complaint expressly fivers that the duty of the defendant in'the premises was. to move said car, that notice and request so to do was communicated to defendant, and thfit defendant negligently omitted the performance of that duty, in consequence of which the lumber was destroyed. The argument that in the complaint no destination for the car is averred, no place whereto the defendant was obligated within its duty to-remove the car, might (though we are not now invited to decide it) be in point, if a ground of demurrer had been interposed raising that objection to the complaint. It is sufficient to conclude that the complaint avers, expressly, a duty in its breach, and injury in consequence thereof. If the averment of these ordinarily essential elements in the statement of a cause of action are imperfect, demurrer should have been employed to point out the defects. Under the principles announced and applied in L. & N. R. R. Co. v Gidley, 119 Ala. 523, 24 South. 753, and A. G. S. R. R. Co. v. Quarles, 145 Ala. 436, 40 South. 120; and the very recent decision in A. G. S. R. R. Co. v. Elliott, 150 Ala. 381, 43 South. 738, it must be held that the demurrer was erroneously sustained. The complaint makes a case where the carrier was culpable in its failure to move the car in question, and under such circumstances the destruction of the goods by fire, even though communicated without the carriers’ other fault, will be traced in causation to- the concurrent causes afforded by the fire and negligent delay in the performance of the duty of removal.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.