Birmingham Ry., Light & Power Co. v. Bennett
| Decision Date | 28 November 1905 |
| Citation | 39 So. 565,144 Ala. 369 |
| Parties | BIRMINGHAM RY., LIGHT & POWER CO. v. BENNETT. |
| Court | Alabama Supreme Court |
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.
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 the demurrer should have been sustained.
The only point made in brief of counsel for appellant upon the ruling of the lower court on the demurrers to the third and fourth counts relates to the grounds attempting to point out vagueness and indefiniteness. Whether they are or are not, we need not decide, as the demurrers were general, and the trial court properly overruled them.
Charges 1, 2, and 5 are the affirmative charges, and the appellant contends should have been given, because of a variance, in that the complaint avers the "South Ensley" line and the proof showed the "North Ensley" line. As this case must be reversed, we need not determine this question, as there need be no variance on the next trial.
The judgment of the city court is reversed, and the cause remanded.
Reversed and remanded.
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Dwight Mfg. Co. v. Holmes
... ... Co. v. Williams, supra; B.R., L. & P. Co. v ... Bennett, 144 Ala. 372, 39 So. 565 ... It is ... 511, 49 Am.St.Rep. 21; ... Jordan v. Ala. C., G. & A. Ry. Co., 179 Ala. 291, 60 ... So. 309; Grasselli Chem. Co. v ... ...
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Birmingham Ry., Light & Power Co. v. Barrett
... ... acts in themselves show or suggest negligence, and a general ... averment of negligence does not cure the defective ... specification. Birmingham O. & M. Co. v. Grover, 159 ... Ala. 276, 281, 48 So. 682; B. R. L. & P. Co. v ... Bennett, 144 Ala. 372, 39 So. 565. But where the ... complaint merely states the fact and res gestæ of the injury, ... not imputing the defendant's negligence to them, and ... without specifying the negligent acts or omissions relied on, ... a general averment that the plaintiff was injured as a ... ...
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Birmingham Ry., Light & Power Co. v. Cockrum
... ... Brown, 150 Ala. 327, ... 43 So. 342; M. & C. R. R. v. Martin, 117 Ala. 367, ... 23 So. 231; Central of Ga. R. R. v. Freeman, 134 ... Ala. 354, 32 So. 778; L. & N. R. R. v. Mitchell, 134 ... Ala. 265, 32 So. 735; Anniston Co. v. Rosen, 159 ... Ala. 195, 48 So. 798, 133 Am. St. Rep. 32; Bennett's ... Case, 144 Ala. 369, 39 So. 565; Glover's Case, 142 Ala ... 492, 38 So. 836; Pearce's Case, 159 Ala. 141, 49 So. 247 ... There ... was no proof that the wire was so heavily charged as to ... render injury likely or probable under normal or ordinary ... conditions, or that the ... ...
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Birmingham Ry., Light & Power Co. v. Barrett
... ... the [4 Ala.App. 350] line of "his" duties; but ... whether or not the demurrers sufficiently point out the ... defect and raise the question of this count's being ... subject to the vice discussed in the case of Birmingham ... R., L. & P. Co. v. Bennett, 144 Ala. 372, 39 So. 565, it ... is not necessary to decide, as the case must be reversed for ... reasons to be subsequently given, and the count is easily ... amended to avoid this question arising upon another trial ... The ... count should be so amended as to clearly aver that ... ...