Birmingham Ry., Light & Power Co. v. Bennett

• Court: Alabama Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: Birmingham Ry., Light & Power Co. v. Bennett, 39 So. 565, 144 Ala. 369 (Ala. 1905)
• Decision Date: 28 November 1905
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. BENNETT.

39 So. 565

144 Ala. 369

BIRMINGHAM RY., LIGHT & POWER CO. v. BENNETT.

Supreme Court of Alabama

November 28, 1905

Appeal from City Court of Birmingham; A. A. Coleman, Judge.

"To be officially reported."

Action by Mary Bennett against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Reversed.

Tillman Grubb, Bradley & Morrow, for appellant.

Frank S. White & Son, for appellee.

ANDERSON J.

The second count of the complaint charges wanton negligence against "defendant's agents or servants, or some of them, in charge or control of said car; * * * that said servants or agents, or some of them, knowing that plaintiff was in the act of disembarking from said car, and knowing that to start said car suddenly while plaintiff was in the act of disembarking therefrom would likely seriously injure plaintiff, yet said servants or agents, or some of them, in charge or control of said car wantonly started the same suddenly." It was therefore insufficient, since it does not aver that all of the agents or servants knew of the plaintiff's position, or that the ones who started the car or caused it to be started knew that the plaintiff was disembarking. It might be that some of them knew that the plaintiff was about to alight from the car, yet the defendant could not be responsible under a claim of wantonness, unless the car was started or caused to be started by the agent or servant who knew the fact. Some of them may have known it yet there is no averment that the act complained of was committed by such agent or servant, and...