392, 43 L. R. A. 297, and authorities there cited. There was clearly no duty on plaintiff to request the conductor to stop the train, after it started, for him to alight: Central R. R. & Banking Co. v. Miles, 88 Ala. 256, 6 South. 696. He had the right to get off, and if injured in doing so he may recover if the conductor knew or ought to have known what his purpose was in boarding 81 it, there being no dispute but that he was diligent in the service he was rendering, and in getting off he did no more than a prudent and careful man would have done. And the breach of duty owing to him by the conductor in starting the train without giving him a reasonable opportunity to alight was clearly the proximate cause of his injury, just as much so as was the breach of duty the proximate cause of the injury recovered for in the case of Central R. R. & Banking Co. v. Miles, 88 Ala. 256, 6 South. 696, and other cases cited by us of a similar nature. We need only apply these principles to the points insisted on for a reversal in brief of appellant's counsel, except as to charge 8, to see that none of them are well taken.

Charge 8 was calculated to mislead the jury to the conclusion that the conductor must have had express notice that plaintiff was not a passenger, or did not intend to remain on the train.

Affirmed.

Weakley, C. J., and Simpson and Anderson, JJ., concur.

The Duty of Carriers to Persons Assisting Passengers on a train is discussed in the notes to Illinois Cent. R. R. Co. v. O'Keefe, 61 Am. St. Rep. 97; Little Rock etc. Ry. Co. v. Lawton, 29 Am. St. Rep. 54. If the father of an invalid daughter has an agreement with a railroad company that its cars shall stop long enough for him to put her aboard the cars, and to alight therefrom in safety, the relation of carrier and passenger exists between him and the company while he is assisting her on the cars and departing therefrom: Evansville etc. R. R. Co. v. Athon, 6 Ind. App. 295, 51 Am. St. Rep. 303. But it is said that a person who goes into the caboose of a freight train to assist a passenger, without license or expectation of becoming a passenger, is a mere trespasser, to whom the railroad company owes no duty until it has knowledge that he is there: Earl v. Chicago etc. Ry. Co., 109 Iowa, 14, 77 Am. St. Rep. 516. And if a man goes

to a depot with his wife to assist her in taking a train, but with no intention himself of becoming a passenger, it is said that the railway company owes him no duty of protection from third persons at the depot: Houston etc. R. R. Co. v. Phillio, 96 Tex. 18, 97 Am. St. Rep.

Am. St. Rep., Vol. 121-3

DANIELS v. CARNEY.

[148 Ala. 81, 42 South. 452.]

PLEADING What not Sufficient to Charge Defendant with Knowledge. An averment that the defendant's servants were guilty of negligence in failing to stop the paddle-wheels to prevent the creation of a succession of large waves when a small boat with occupants was plainly visible to such servants is defective, in not further stating that such boat and its contents were actually seen by them. (p. 36.)

PLEADING-Necessity of Averring Knowledge of Danger.—A complaint charging negligence in not stopping the revolutions of a propeller or paddle-wheel of a steamboat when a small boat and its occupants were seen by the defendant's servants is defective, in not showing that the peril of such occupants was an obvious one, or was known to the servants. (p. 36.)

NAVIGABLE WATERS-Respective Rights of Large and Small Boats.-The exercise of the right of navigation is as much guaranteed to small craft as to a great steamer. Each owes the other the duty of observance of due care so as to avoid inflicting wrong and injury upon the other. The injury resulting from a violation of this duty, whether intentional or through negligence, carries with it the legal responsibility of answering in damages. (p. 37.)

NAVIGABLE WATERS—Duty of Steamers to Stop the Revolution of Paddle-wheels to Prevent Injury to Occupants of Small Boats. If a steamer and a small boat are being navigated in a river, and the small boat is in such a position that the continued revolution of the steamer's paddle-wheel or propeller will create large waves sufficient to capsize or swamp the small boat in passing, thereby endangering the lives of its occupants, the steamer and its owners owe the duty to such occupants of avoiding the danger by ceasing the normal operation of the steamer and stopping the revolution of its wheels or propeller until the small boat has passed without the zone of danger of waves from the larger boat, and if, by failing to do so, any of such occupants loses his life, such owners are answerable. (p. 37.)

NAVIGABLE WATERS-Contributory Negligence Occupants of Small Boats, When not Presumed Guilty of. Where persons in a small boat in a navigable stream are safe in the absence of an unusual disturbance in the water, and the water at the time the steamer approaches is smooth, they cannot be adjudged guilty of contributory negligence when the boat is capsized by waves due to the continuous revolution of the propeller or wheels of the steamer. Such persons had the right to assume that the navigators of large crafts would observe their duty under the law toward a small boat to avoid the infliction of injury. (p. 37.)

MASTER AND SERVANT-Steamboat, Failure to Allege that Persons Operating Were Acting in the Line of Their Authority.-In an action against the owners of a steamboat to recover for the death of a human being averred to have occurred from the negligence of servants who were operating such boat in failing to discontinue such operation and to stop the propeller or wheels of such steamer, and thereby prevent large waves by which the small boat was capsized, the complaint must allege that such servants acted at the time in the scope and line of their authority. (p. 38.)

Action by an administratrix to recover for personal injuries resulting in the death of her intestate. Demurrers interposed to the complaint were sustained and judgment entered thereon in favor of the defendant, from which the plaintiff appealed.

R. W. Stoutz, for the appellant.

Gregory L. and H. T. Smith, for the appellees.

83 DOWDELL, J. The complaint was originally filed containing two counts, and was afterward amended by the addition of the third count, which latter count was subsequently amended. The complaint was demurred to, both as originally filed and as amended, which demurrers being sustained by the court, the plaintiff declined to further plead, and thereupon judgment was rendered for the defendant, from which judgment the present appeal is prosecuted. The court's ruling on the demurrers constitutes the basis of the first four assignments of error; the fifth and last assignment being based on the final judgment rendered.

The suit is to recover damages for personal injury, resulting in the death of plaintiff's intestate by drowning, through the negligence of defendant's servants in the operation of defendant's steamboat, causing the small boat in which plaintiff's intestate was riding to be capsized in Mobile river. The theory of the plaintiff's case is that the death of plaintiff's intestate was the proximate result of the failure of defendant's servants to exercise due care in the operation of defendant's steamboat after the discovery of the peril of said intestate. There is no pretense of any prior negligence in the operation of said steamboat whereby the accident resulted. On the contrary, it is averred that the steamboat 84 was being operated in the usual and normal way. The theory, as well as the insistence in argument, of plaintiff's counsel, is that it was the duty of the servants, after the discovery of the peril, to cease the normal operation of the steamboat, by stopping the revolution of the propeller or paddle-wheels of said boat, in order to prevent the creation of waves, which, it is alleged, caused the swamping or capsizing of the small boat in which said intestate was riding.

To charge one with subsequent negligence, there must exist a prior knowledge on the part of the defendant of the peril of the person injured. The first count of the complaint, in counting on the failure of the defendant's servant or servants to exercise due care by the stopping of the revolutions of the paddle-wheels of the said steamboat to prevent the creation of a succession of large waves, was defective, and subject to demurrer, in not averring knowledge on the part of the servant of the peril of the deceased, which knowledge was necessary to impose the duty claimed under the facts and circumstances stated. The count avers that the small boat, with its occupants, in which the intestate was riding was plainly visible to defendant's servants. This may all be true, and yet the small boat, with its occupants, may not, as a matter of fact, have been seen by defendant's servants. To say that an object was plainly visible is not the equivalent of saying that it was seen. Such an averment leaves the main fact, that of actually seeing, and hence a knowledge on the part of defendant's servants of the perilous situation of plaintiff's intestate, to rest merely in inference. Good pleading requires that the facts which constitute the cause of action relied on should be stated in the complaint and not left in inference. Facts, when averred, may be established inferentially from other facts shown in evidence; but this is a rule of evidence, and not of pleading. In pleading, the facts themselves, whether they are to be established directly or inferentially, should be stated. The second count, while it avers that the small boat with its occupants, was seen by the defendant's servants and in time to avoid the injury, does not aver that the peril of the deceased was an obvious one, or that it was known to defendant's servants. By the pleading this latter fact was left merely in inference, which rendered the count faulty. Both the first and second counts were, for the reasons above stated, subject to demurrer.

85

By the amendment of the third count the defects above pointed out were met and obviated by proper averments. The Mobile river is navigable water and a public highway, and, under the law, the right to navigate the same is equally guaranteed to everyone: Const. 1901, sec. 24; Code 1896, sec. 2515. The exercise and enjoyment of this right is as much guaranteed to the small craft as to the

great steamer. Each one owes the other the duty of the observance of due care, so as to avoid inflicting wrong and injury upon the other. Injury resulting from the violation of this duty, whether intentional or through negligence, carries with it the legal responsibility of answering in damages: Foster v. Holly, 38 Ala. 76. The defendant's servants, in the operation of the steamboat, whereby large waves were created by its propeller or paddle-wheels, sufficient to swamp or capsize a smaller boat in passing, thereby endangering the lives of the occupants of the small boat, owed to the latter the duty of avoiding the danger, by ceasing the normal operation of the steamer and stopping the revolution of its paddle-wheels or propeller, until the smaller boat had passed without the zone of danger of waves from the larger boat. This principle seems to be settled both upon reason and authority: De Lelle v. The Atlanta (D. C.), 34 Fed. .918; The New York (D. C.), 34 Fed. 757; The Southfield (D. C.), 19 Fed. 841; The Kaiser Wilhelm der Grosse (D. C.), 134 Fed. 1012. In Wright v. Brown, 4 Ind. 95, 58 Am. Dec. 622, where a small craft was caught by the swell of a passing steamer, the case was considered just as though there had been a collision, and the court said: "We shall consider this case as one of collision between the vessels; for it must be the same thing in principle whether the steamboat ran upon the flatboat or forced some other object upon it to produce the injury." In the case at bar, it cannot as a matter of law be said that the plaintiff's intestate, on the facts stated in the complaint, was guilty of negligence that contributed proximately 80 to his death. It appears from the complaint that the small boat or skiff in which he had taken passage to cross the river, laden as it was, was nevertheless safe in the absence of an unusual disturbance of the water, and that the water at the time and before the defendant's steamer approached was smooth. The plaintiff's intestate had the right to assume that the navigators of large crafts would observe their duty under the law toward the small boat in which he had taken passage in avoiding the infliction of injury.

86

The third count was, however, in another respect faulty for lack of proper averment, whereby it was rendered subject to the demurrer interposed. The count fails to aver that the servant or servants who were operating the steam