Birmingham Belt R. Co. v. Gerganous

• Decision Date: 22 December 1904
• Parties: BIRMINGHAM BELT R. CO. v. GERGANOUS.
• Court: Alabama Supreme Court

37 So. 929

142 Ala. 238

BIRMINGHAM BELT R. CO. v. GERGANOUS.

Supreme Court of Alabama

December 22, 1904

Appeal from City Court of Birmingham; W. W. Wilkerson, Judge.

Action by James Gerganous against the Birmingham Belt Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This action was brought by the appellee, James Gerganous, against the Birmingham Belt Railroad Company, to recover damages for personal injuries. The complaint contained three counts which were in words and figures as follows:

"First Count. The plaintiff claims of the defendant two thousand dollars as damages, for that, heretofore, to wit, on the 19th day of July, 1901, defendant was operating a certain train upon a railway, which train was composed of a steam locomotive engine and certain cars, and said railway ran along or across a public highway in the city of Birmingham Jefferson county, Alabama, and was on grade with same; that on said day, while plaintiff was in a vehicle to which a team was attached, and was upon said public highway in said city, said train ran upon or against said vehicle or one of the animals composing said team, and, as a proximate consequence thereof, plaintiff was thrown or caused to fall or jump from said vehicle, his back was injured and sprained, his side was cut and bruised, he was injured internally, was shocked and otherwise injured in his person, was made sore and sick, suffered great mental and physical pain, his health and physical stamina were greatly and permanently impaired, he was rendered for a long time less able to work and earn money, was rendered permanently less able to work and earn money, plaintiff's vehicle was greatly injured or destroyed, plaintiff's said team was greatly injured and their value lessened, and plaintiff's harness was greatly injured or destroyed and plaintiff was put to great trouble, inconvenience, and expense for medicine, medical attention, care, and nursing in or about his efforts to heal and cure said wounds and injuries. Plaintiff alleges that defendant negligently caused or allowed said train to run upon or against said vehicle or animal as aforesaid, whereby plaintiff suffered said injuries and damages as aforesaid.

"Second Count. Plaintiff refers to and adopts all the words and figures of the first count from the beginning thereof, to and including the words 'heal and cure his said wounds and injuries,' where they first occur together in said count. Plaintiff further avers that defendant wantonly and intentionally caused or allowed said train to run upon or against said vehicle or animal as aforesaid, and inflict upon plaintiff the injuries and damage aforesaid.

'Third Count. Plaintiff refers to and adopts all the words and figures of the first count from the beginning thereof, to and including the words 'heal and cure the said wounds and injuries,' where they first occur together in said count. Plaintiff further avers that said train run upon or against said vehicle or animal as aforesaid, and plaintiff suffered said injuries and damage as a proximate consequence of the violation by defendant of section 466 of the City Code of Birmingham, which is as follows: 'Sec. 466. Speed -- Headlight--Signals.--Any person who causes, permits or suffers any locomotive engine to run within the city limits at a greater rate of speed than eight miles per hour when running forward, or four miles per hour when running backwards, or who causes, permits or suffers any locomotive engine or train to run or move in the night time without a headlight, or who shall cause, permit or suffer any locomotive or train to run at any time without causing the usual signals to be given continuously, by ringing the bell or otherwise, must, upon conviction, be fined not less than one or more than one hundred dollars.' Said violation of said ordinance consisted in this, viz.: Defendant caused permitted, or suffered said locomotive engine to run within the limits of said city at a greater rate of speed than four miles per hour, when running backwards; defendant caused, permitted, or suffered said train to run or move in the nighttime without having a headlight; defendant caused, permitted, or suffered said train to run without causing the usual signals to be given continuously by ringing the bell or otherwise. All to plaintiff's damage ten thousand dollars, wherefore he sues."

To the first and third counts of the complaint the defendant demurred, upon the following ground: "(1) It is not shown by said count what duty defendant owed the plaintiff. (2) It is not shown by said count that the defendant neglected any duty to the plaintiff which caused or contributed to cause the injury complained of. (3) The facts alleged in said count do not show any negligence for which the defendant is liable or chargeable. (4) It is not alleged or shown in said count how or in what manner defendant was negligent. (5) It is not...