# Nashville, C. & St. L. Ry. v. Blackwell > Supreme Court of Alabama · March 23, 1918 · 201 Ala. 657 URL: https://www.frixlaw.com/law-library/cases/3238039 ## Case - **Full name:** Nashville, C. & St. L. Ry. v. Blackwell - **Court:** Supreme Court of Alabama - **Decided:** March 23, 1918 - **Citations:** 201 Ala. 657; 79 So. 129; 1918 Ala. LEXIS 181 - **Precedential status:** Published - **Opinion:** Dissent by Thomas - **Judges:** Thomas, Sayre, Anderson, Mayfield, Somerville, Gardner - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3238039 ## Opinion text THOMAS, J. (dissenting). To count 3 demurrer was directed to effect that it was shown in said count that plaintiff was not an invitee, express or implied, but was a mere licensee. The demurrer was in my judgment properly overruled. The count is as follows- “Plaintiff claims of defendant the sum of $1,-500 damages for this, that on or about the latter part of December, 1915, the defendant, a corporation, owned and operated a railroad from Deeherd, Tenn., to Hobbs Island, Ala., through the city of Huntsville, in Alabama, for the purpose of carrying freight and passengers for hire as a common carrier, and in said, city of Huntsville maintained a depot for the reception and accommodation of its passengers, and built and maintained a driveway leading to and from and by its said depot and under a shed, which is a part of and extends westward from the same, and plaintiff avers that a large number of people were accustomed to pass along said driveway going to and from Clinton street to the Farmers’ Warehouse Company, and the Orgain-Pollard Coal Company and to Holmes street, all in said city of Huntsville, and that he (the plaintiff) had passed backwards and forwards a great number of times over and along said driveway, and that it was known to the defendant, its servants, agents . or employés, that the public in large numbers used said driveway in passing from said points. And plaintiff further alleges that on or about the latter part of December, 1915, as he was passing along said driveway in his automobile going in a southward direction and in attempting to go under said shed his automobile ran into a rope that was stretched across the same about four feet high and attached at one end to a post or pillar that supports said shed, and at the other end to the-side of said depot, and that thereby the windshield and top was broken, wrenched and torn from said car, and that he was cut and bruised and injured about the hands and body, so that he suffered both physical pain and mental anguish, and so that he. had to expend sums of money in procuring medical aid. And plaintiff alleges that the proximate cause of his injuries was the negligence of the defendant, its servants, agents, or employés, in erecting and maintaining said rope across said driveway; all to his injuries in the sum as above alleged.” I cannot concur in the granting of the rehearing for the failure of the trial court to sustain demurrer to this count. The averred facts were, that defendant built and maintained the driveway in question in the city of Huntsville as a part of its passenger and freight depot facilities, leading under the porte-eochére or shed, a part of said depot building; that said driveway connected with two of the public streets in said city,, and the general public, or a large number of the people thereof, and the plaintiff were accustomed to use said driveway from Clinton to Holmes street; and that this fact was known to defendant’s agents in charge of said depot and driveway. The following authorities support the trial court in overruling demurrer to count 3: Dunn v. Gunn, 149 Ala. 583 , 42 South. 686 ; Lewman v. Andrews, Adm’x, 129 Ala. 170 , 29 South. 692 ; Southern Railway Co. v. Bates, 194 Ala. 78 , 69 South. 131 , L. R. A. 1916A, 510; A. G. S. R. R. Co. v. Godfrey, 156 Ala. 202 , 47 South. 185 , 130 Am. St. Rep. 76 ; Montgomery & Eufaula R. R. Co. v. Thompson, 77 Ala. 448 , 54 Am. Rep. 72 ; Corby v. Hill, 4 Eng. Com. Law Rep. 554; 1 Thompson on Neg. § 1016, pp. 593, 594. A careful consideration of the ruling in Barney Coal Co. v. Hyche, 197 Ala. 228 , 72 South. 433 , is persuasive that that decision does not militate against the view I have expressed, because the roadway in that case was near the defendant’s coal tipple, and not through or near a public place as, by count 3, the roadway in the case at bar is alleged to be. The count in the instant case condemned by a majority of my Brothers in my judgment sufficiently charged the de *662 fendant with the duty not to unnecessarily injure those who, by implied invitation, were on or proceeding aiong said driveway in the city of Huntsville. The plaintiff was not a mere licensee, but an implied invitee, when he received his damage and injury, the proximate result of defendant’s violation of its duty to him as such invitee on said driveway. GARDNER, J., concurs with the writer in the above dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3238039. Public record. Not legal advice.