Central of Georgia Ry. Co. v. Freeman

• Decision Date: 21 July 1904
• Citation: 140 Ala. 581,37 So. 387
• Parties: CENTRAL OF GEORGIA RY. CO. v. FREEMAN.
• Court: Alabama Supreme Court

37 So. 387

140 Ala. 581

CENTRAL OF GEORGIA RY. CO. v. FREEMAN.

Supreme Court of Alabama

July 21, 1904

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by Robert A. S. Freeman against the Central of Georgia Railway Company.Judgment for plaintiff, and defendant appeals.Reversed.

Loudon & Loudon, for appellant.

Bowman & Harsh, for appellee.

SHARPE J.

On October 29, 1898, plaintiff, while attempting to walk across the defendant's railroad track in Alexander City, was run upon and injured by a locomotive drawing one of defendant's trains.To recover for the injury this suit was commenced on October 19, 1899, by a complaint consisting of five counts.The fourth and fifth of these counts were held bad on a former appeal.134 Ala. 354, 32 So. 778.After remandment of the cause, the fifth count went out on demurrer, and the complaint was, on October 25, 1902, amended by the addition of the sixth count and by striking out part of the fourth.In neither the fourth nor the sixth count is the act of running upon the plaintiff characterized as negligent, but the fourth, as amended, avers "that defendant wantonly or intentionally caused said engine or train to run upon or against plaintiff," and the sixth avers that "defendant, through its servant or agent in charge or control of said train, wantonly or intentionally inflicted upon plaintiff the injuries and damages set out in the first count of this complaint by wantonly or intentionally causing or allowing said train to run upon or against plaintiff," etc.These counts are in trespass.The only evidence introduced on the trial as to who ran the train, or directed the manner of its running, or as to who supplied the animus of the act complained of, had reference to the engineer or person in the employ of the defendant who was on and in the immediate control of the train.In City Delivery Co. v. Henry,139 Ala. 161, 34 So. 389, there were counts which averred that "the defendant, through its agent or servant, John McClary, wantonly, willfully, or intentionally caused an ice wagon to run against plaintiff with great force, thereby throwing plaintiff upon the ground and in flicting upon her serious injuries," etc.In the opinion rendered it was said: "We see no escape from the conclusion that the wantonness, willfulness, and intentional wrong thus averred are the wantonness, willfulness, and evil intention of the defendant itself, as...