Alabama Great Southern R. Co. v. Smith

• Decision Date: 02 January 1915
• Docket Number: 912
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. SMITH
• Court: Alabama Supreme Court

68 So. 56

191 Ala. 643

ALABAMA GREAT SOUTHERN R. CO. v. SMITH

No. 912

Supreme Court of Alabama

January 2, 1915

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by Fred Smith against the Alabama Great Southern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Count 4 is as follows:

Plaintiff claims of defendant *** damages for that heretofore *** defendant was engaged in the operation of a railroad in Birmingham, *** and plaintiff was lawfully, rightfully, and properly on the premises of defendant, in the discharge of his several duties at the instance or request of defendant its servants or agents, and defendant's servants or agents, acting within the line and scope of their employment wantonly or willfully caused or permitted a collision which threw a car of coal upon or against plaintiff, thereby causing him the following injuries; *** and plaintiff avers that his said wounds and injuries were the proximate consequence and caused by reason of the wantonness and willfulness of defendant's servants or agents as aforesaid.

A.G. &amp E.D. Smith, of Birmingham, for appellant.

Erle Pettus, of Birmingham, for appellee.

McCLELLAN J.

The plaintiff (appellee) was a crossing flagman where the defendant's (appellant's) line of railway crossed the railway line of the Louisville & Nashville Railroad Company. There was a collision between trains of the two companies, as a result of which a car of coal in the latter mentioned company's train, which lay over the railroad crossing was overturned on plaintiff, injuring him.

According to the apt authority of the following decisions, among others, count 4, which the report of the appeal will contain was subject to the ground of the demurrer taking the objection that the allegation of negligence was merely the conclusion of the pleader. Neyman v. G.S.R.R. Co., 172 Ala. 606, 55 So. 509, Ann.Cas. 1913E, 232; Sou. Ry. Co. v. Weatherlow, 153 Ala. 171, 44 So. 1019; B.R.L. & P. Co. v. Brown, 150 Ala. 327, 43 So. 342; Woodward Iron Co. v. Finley, 66 So. 587. The averments of the count only characterizes the act or omission, "causing or permitting a collision," as willful or wanton, and then describes the effect of the act or omission, which alone is characterized as having been done or suffered willfully or wantonly. This effect may have ensued, as doubtless it did, from the act or omission of the character the...