Birmingham & A.R. Co. v. Mattison

• Decision Date: 21 December 1909
• Citation: 166 Ala. 602,52 So. 49
• Parties: BIRMINGHAM & A. R. CO. v. MATTISON.
• Court: Alabama Supreme Court

52 So. 49

166 Ala. 602

BIRMINGHAM & A. R. CO. v. MATTISON.

Supreme Court of Alabama

December 21, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from City Court of Talladega; G. K. Miller, Judge.

Action by Laura Augusta Mattison against the Birmingham & Atlantic Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Knox Acker, Dixon & Blackmon, for appellant.

Whitson & Harrison and Cecil Browne, for appellee.

MAYFIELD J.

Plaintiff appellee, a girl 11 years of age, by her next friend, sues the defendant, appellant, to recover damages for personal injuries. The plaintiff was run over by a freight train of defendant at a public crossing in the city of Talladega receiving serious personal injuries, the worst of which was the loss of a leg. The complaint contained three counts, 1, 2, and 3. Count 2 was eliminated by amendment and need not be considered. Count 1 declared on simple negligence; count 3 on wanton negligence or willful injury. Demurrers were interposed to the complaint and to each count, severally. The demurrers were all overruled. The plaintiff, nevertheless, thereafter amended each count, and to the complaint as amended the demurrers were re-interposed, as before, and again overruled. To the complaint, and to each count thereof, separately and severally, the defendant pleaded the general issue and 11 special pleas, setting up that plaintiff was a trespasser, contributory negligence, and assumption of risk. To these special pleas, the plaintiff interposed demurrers, in so far as they attempted to answer the whole complaint, and also in so far as they attempted to answer each count. The demurrers were sustained generally. The defendant then amended its special pleas, and the plaintiff again interposed the demurrers thereto as before, with some additional grounds, and the demurrers were again sustained generally.

The averments of each count, as originally filed and as amended, were very general as to the allegations of negligence or wrongful acts complained of; but under our system of pleading in such cases they were at least not subject to the demurrers interposed. We are unable to intelligently review the rulings of the trial court upon the demurrers to the special pleas. The demurrers were properly sustained to each of the pleas in so far as the plea attempted to answer count 3. The defenses attempted to be set up were not availing as a defense to this count which declared on wanton negligence or willful injury; some of the pleas were not answers to either count, while some were good as to count 1. The record proper must alone be looked to in reviewing rulings, upon demurrer, and it merely shows that the demurrers were sustained as to all the special pleas. We must presume in favor of the trial court's ruling that this was the demurrer to the pleas in so far as they attempted to answer the whole complaint, or the third count, which was clearly proper. There is no ruling shown by the record proper upon the demurrer to the pleas in so far as they are answers to the first count. The bill of exceptions recites that issue was joined upon special pleas 2, 4, 5, 9, and 12, to the first count; but we cannot look to this as to rulings upon pleadings. The record proper should show the issues upon which the case was tried, and not the bill of exceptions. It clearly appearing that the case was tried upon the general issue as to counts 1 and 3, and pleas of contributory negligence to count 1, we will so treat the case as to rulings upon the charges and the evidence, but cannot review the rulings upon the demurrers to the pleas, for the reason assigned, and for the further reason the bill of exceptions does not inform us sufficiently as to this, even if we could look to it.

Being tried upon the issues indicated, plaintiff obtained a verdict and judgment for $4,500, from which the defendant appeals and assigns 142 grounds of error. Many of these grounds are not insisted upon at all, many are insufficiently insisted upon many of them are properly grouped together and insisted upon jointly and severally in this manner, and some of them are fully and ably argued. We will only respond to those properly assigned and properly treated by counsel, and which are necessary to a proper determination of the cause; and we will then, to keep this opinion within reasonable compass, have to treat the assignments in groups which involve but a single question of law. The only negligent or wrongful acts alleged in the complaint as amended, which were relied upon for recovery, were as follows: Count 1: "All of said injuries were the proximate result of the negligence of defendant through its servants and employés in and about the running and pushing of said engine and car, and the management and control thereof by them said servants and employés being then and there in charge and control of said engine and cars--all of which was and is to plaintiff's great damage as aforesaid." Count 3: "The employés or servants of the said defendant, being then and there in charge of one of defendant's trains, recklessly and wantonly or intentionally ran one of defendant's said cars of said train on and against plaintiff." These averments were sufficient to authorize evidence as to the...