Louisville & N. R. Co. v. Nolen

• Decision Date: 16 December 1948
• Docket Number: 4 Div. 495.
• Citation: 37 So.2d 912,251 Ala. 445
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. NOLEN.

37 So.2d 912

251 Ala. 445

LOUISVILLE & N. R. CO. v. NOLEN.

4 Div. 495.

Supreme Court of Alabama

December 16, 1948

Powell, Albritton & Albritton, of Andalusia for appellant.

E. O Baldwin and Jas. M. Prestwood, both of Andalusia, for appellee.

Count 1 of the complaint is as follows:

'The plaintiff claims of the defendant the sum of Two Thousand ($2000.00) Dollars, as damages, for that on, to-wit, May 20 1946, the defendant owned and operated a railroad through Butler County, Alabama, upon and over which it ran engines and trains of cars propelled by steam, for the transportation of passengers and freight for hire; that upon said date, May 20, 1946, defendant's agents and servants, while acting within the line and scope of their employment as such agents and servants of the defendant, while engaged in running one of its engines to which was attached a train of cars, upon and over said railroad, at or near Wald, Alabama, and at a point where a public highway crosses said railroad, so negligently and carelessly conducted themselves in and about the management of said engine and train of cars that said engine was caused to run against plaintiff's automobile truck and rendering the same useless and of no value, all as a proximate consequence of the negligent and careless conduct of said agents and servants of said defendant in and about the management of said engine and train of cars. Wherefore plaintiff sues.'

Count 2 is the same as count 1, except that it alleges that said agents and servants 'so wantonly and wilfully conducted themselves,' and alleges plaintiff's damages to be a proximate consequence of 'the wilful and wanton conduct' of said agents and servants.

BROWN, Justice.

This is an action of trespass on the case by appellee Nolen against the appellant Louisville & Nashville Railroad Co., a corp., claiming damages in consequences of the demolition of plaintiff's truck which when struck was standing with its hind wheels between the rails on a public road crossing near Wald in Butler County, Alabama. The trial resulted in a verdict for the plaintiff assessing the damages at $1500 followed by judgment on the verdict of the jury from which the defendant has appealed.

Both of the counts are in case. Said counts ascribe plaintiff's damage to the negligence of defendant's servants, agents or employees while acting within the line and scope of their employment in the first count and in the other--the second count--to the wanton and wilful conduct of defendant's agents or servants while acting within the scope of their employment in the management of the locomotive. City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469. Such count to withstand appropriate demurrer must by averment of facts in the inducement show a duty of the defendant to the plaintiff and a breach of the duty, which breach may be stated as a conclusion. Alabama Power Co. v. Curry, 228 Ala. 444, 153 So. 634; Southern R. Co. v. Dickson, 211 Ala. 481, 100 So. 665; Doullut & Williams v. Hoffman, 204 Ala. 33, 86 So. 73; Leach v. Bush, 57 Ala. 145; Mobile & O. R. Co. v. George, 94 Ala. 199, 10 So. 145.

There is an absence of averment in both of said counts, showing how or in what circumstances or by whom or for what purpose, the plaintiff's truck was brought within the sweep of the locomotive.

The defendant demurred to each of the counts of the complaint on the following grounds: 'Said complaint states no cause of action. Said complaint is so vague, indefinite and uncertain that it fails to apprise the defendant of the cause of action it is called upon to defend. It affirmatively appears from the allegations of said complaint that plaintiff's damage as alleged was caused by his own negligence. * * *'

The writer is of opinion that the grounds of demurrer were well taken, and error was committed by the court in overruling the demurrer. Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443, and authorities there cited.

The majority of the justices concurring, however, are of opinion that the grounds stated are too general to put the court in error for overruling the demurrer. Code of 1940, Tit. 7, § 236; Deslandes v. Scales, 187 Ala. 25, 65 So. 393; American Nat. Bank etc. v. Boykin, 27 Ala.App. 249, 170 So. 87; Allison v. Fuller-Smith & Co., 20 Ala.App. 216, 101 So. 626; Birmingham Electric Co. v. Echols, 249 Ala. 589, 32 So.2d 379; Alabama Power Co. v. Curry, 228 Ala. 444, 153 So. 634; Woodward Iron Co. v. Burges, 219 Ala. 136, 121 So. 399.

The case was submitted to the jury on testimony adduced by the plaintiff and at the conclusion of the plaintiff's evidence both the plaintiff and the defendant rested and the defendant requested the general affirmative charge in writing and like charge as...