Western Ry. of Alabama v. Turner

• Decision Date: 09 February 1911
• Parties: WESTERN RY. OF ALABAMA v. TURNER.
• Court: Alabama Supreme Court

54 So. 527

170 Ala. 643

WESTERN RY. OF ALABAMA v. TURNER.

Supreme Court of Alabama

February 9, 1911

Appeal from Circuit Court, Macon County; S. L. Brewer, Judge.

Action by S.W. Turner against the Western Railway of Alabama for damages for killing a mule. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint is as follows: "(1) Plaintiff claims of the defendant, the Western Railway of Alabama, a corporation operating a railroad in Macon county, Alabama. the sum of $200, for that, whereas, the plaintiff was, on, to wit, the 27th day of September, 1909, the owner of a dark iron gray mule, which defendant company killed on said date about 1 3/4 miles east of Chehaw, Alabama, a station on defendant's line of said railway in said county; and plaintiff avers that the engine that was attached to the train of cars was so negligently operated by defendant's agent that the plaintiff's mule was killed; and plaintiff avers that said mule was killed on account of said negligence to plaintiff's damage," etc. "(2) Plaintiff claims of defendant the sum of $200, for that, whereas, on or about the 27th day of September, 1909, the defendant killed one dark iron gray mule, the property of the plaintiff, in Macon county, Alabama, through and by means of negligence or want of skill on the part of the defendant's agents in the management and running of its said locomotives, cars, or trains. (3) Plaintiff further claims of defendant the sum of $200 as damages, for that, whereas, on or about the 21st day of September, 1909, the defendant did, because of negligence or for the want of skill of defendant's employés in the management or running of said train, locomotives, or cars kill one mule, the property of plaintiff, in Macon county Alabama. Wherefore he sues."

George P. Harrison, for appellant.

H. P Merritt, for appellee.

ANDERSON J.

The complaint did not have to aver the name and position of the defendant's servants in operating the train; this suit being by a person who was not an employé. Birmingham Ry v. City Stable Co., 119 Ala. 615, 24 So. 558, 72 Am. St. Rep. 955; Abingdon Mills v. Grogan, 52 So. 596. Good pleading should require a more specific designation of the place of killing the mule than is set out in counts 2 and 3 of the complaint, but this point, while argued, is not raised by the demurrers. There was evidently an attempt to do so, but the demurrer as contained in the record says the complaint does not show with sufficient certainty "when" said injury occurred, and...