Central of Georgia Ry. Co. v. Sturgis

• Decision Date: 14 February 1907
• Citation: 149 Ala. 573,43 So. 96
• Parties: CENTRAL OF GEORGIA RY. CO. v. STURGIS.
• Court: Alabama Supreme Court

43 So. 96

149 Ala. 573

CENTRAL OF GEORGIA RY. CO. v. STURGIS.

Supreme Court of Alabama

February 14, 1907

Appeal from Circuit Court, Covington County; H. A. Pearce, Judge.

Action by R. M. Sturgis against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The original complaint is in the following language "Plaintiff claims of the defendant the sum of $100 damages, as follows: Plaintiff avers that he operates a farm in Covington county, Alabama; that said farm is inclosed by a fence; that he cultivated during the year 1903 on said farm cotton, corn, potatoes, and ground peas. Plaintiff further avers that defendant is engaged in operating a railroad in Covington county, Alabama, and that the track of defendant's said railroad runs through plaintiff's farm; and plaintiff says that it is defendant's duty to erect suitable stock gaps where defendant's track enters into and passes out of plaintiff's farm, and to keep the same in such repair and condition at all times as will prevent stock from going over defendant's track and into plaintiff's farm. Plaintiff avers that defendant negligently allowed the stock gaps where defendant's railroad track enters plaintiff's farm to remain out of repair, or in such condition that hogs could pass over the said stock gaps and into plaintiff's farm. Plaintiff avers that, in consequence of said stock gaps being allowed to remain in such condition, a great number of hogs went over the same and into plaintiff's farm; and said hogs broke down and destroyed a great deal of plaintiff's corn, and rooted up and destroyed a great many of his potatoes and ground peas then growing thereon, namely, from the 12th day of September, 1903, all of which was caused by the negligence of the defendant in allowing said stock gaps to remain out of repair or in such condition as stock could pass over it to the great damage of the plaintiff," etc.

The following, among other, grounds of demurrer were interposed "(2) Because the complaint fails to show that the plaintiff was the owner of the land on which the injury complained of is alleged to have been committed or done at the time of the injury. * * * (5) Because the complaint fails to aver that the defendant ever erected any stock gaps or cattle guards upon their railroad on any land owned by the plaintiff." The trial court overruled these demurrers.

Afterwards the complaint was amended by adding the following count "The plaintiff, Sturgis, claims of the defendant the further sum as damages, for that he is the owner of a farm in Covington county, Alabama, and was the owner of the same during the months of September, October, and November, 1903. Defendants were during such time engaged in operating a railroad in and through said county, which railroad passed through the said lands of plaintiff. Where said railroad entered upon or into the cultivated land of plaintiff, the defendant had constructed a cattle guard; but, after demand made by plaintiff upon the defendant's agent, L. B Vardeman, the defendant negligently failed to keep the said cattle guards in good repair, whereby a great number of hogs were allowed to pass over, around, or through said stock gaps, and into the said cultivated land of plaintiff, during the said time, to wit, September, October, and November 1903, and broke down and destroyed a great deal of plaintiff's corn, and rooted up and destroyed a great many of his ground peas and potatoes planted and then growing on said cultivated land, which were of value to plaintiff, to his damages aforesaid."

Demurrers were filed to this complaint: "(a) Said count fails to aver that plaintiff was the owner of the land upon which the injuries complained of were sustained at the time the said injuries were sustained. (b) Said count is a departure from the original complaint, in that the negligence complained of in the original complaint was a failure to keep the stock gap in repair, and the negligence complained of in the amended count is a failure to keep the cattle guards in repair. (c) Said count...