Cleghorn v. Western Ry. of Alabama

• Decision Date: 18 November 1902
• Citation: 134 Ala. 601,33 So. 10
• Parties: CLEGHORN v. WESTERN RY. OF ALABAMA.
• Court: Alabama Supreme Court

33 So. 10

134 Ala. 601

CLEGHORN v. WESTERN RY. OF ALABAMA.

Supreme Court of Alabama

November 18, 1902

Appeal from circuit court, Macon county; A. H. Alston, Judge.

Action by William Cleghorn against the Western Railway of Alabama. Demurrers to the complaint were sustained, and plaintiff appeals. Reversed.

The complaint contained three counts. The first count was in words and figures as follows: "Plaintiff claims of the defendant the sum of three thousand dollars damages, for that heretofore, in the month of August, 1900, defendant was a corporation operating a railroad in Macon county, Alabama and that said line of railroad intersected a public road at Franklin, in said county and state, making a public crossing that on, to wit, the 23d day of August, 1900, plaintiff avers that he was driving a mule hitched to a one-horse wagon to Tallassee, Alabama, and that when he reached said public crossing, and just as his mule put its front feet between the rails of the defendant's said line of road on said crossing, his mule became frightened at a mail crane erected by defendant on or very near the public crossing, on which crane the United States mail was suspended, and, jerking suddenly backwards, threw plaintiff violently from the seat in said wagon into a ditch about eight or ten feet deep, over which was a bridge leading up to said crossing; that the mule, continuing to back, ran said wagon off of said bridge and the mule and wagon fell on plaintiff before he could rise from where he had been so violently thrown, severely injuring him, breaking his right leg and three ribs in his right side besides otherwise injuring him. And plaintiff avers that said mail crane was negligently erected by the defendant on or near the public crossing, for defendant knew that it was to be used to hang the mail on, so that trains need not stop or slow up in order to receive the United States mail at said station, and that it was so used; that when the mail was suspended from said crane it was an object calculated to frighten a mule of ordinary gentleness, and plaintiff avers that his mule was a mule of reasonable gentleness. And plaintiff avers that by reason of the negligence of defendant in erecting the said mail crane so near the said crossing he was injured as aforesaid, and was compelled to keep his bed for thirteen weeks, and suffered great mental anguish and bodily pain, and is still unable to follow his daily occupation and to perform any hard labor; and by reason of said injuries he was compelled to incur large doctors' bill and drug bill, to his special damage $80. And plaintiff avers that by reason of the negligence of defendant aforesaid he has been damaged in the sum of three thousand dollars, for which he now sues." In the second count the prefatory allegations were the same as in the first count, and the averments of negligence were as follows: "And plaintiff avers that defendant negligently allowed and permitted the said crane to be erected and to remain at said crossing knowing that it was to be used to hang the mail on so that defendant's train could receive the mail without stopping at said station of Franklin, but that it was so used. And plaintiff avers that when the mail was suspended from the said crane it was an object reasonably calculated to frighten a mule of ordinary gentleness, and that his mule was a reasonably gentle mule; and plaintiff avers that on account of the negligence of defendant aforesaid he was damaged," etc. The third count, after containing the same prefatory allegations as alleged in the first count contained the following averments of negligence: "And plaintiff avers that said bridge was erected by defendant, and that it was defendant's duty to keep said bridge in repair, and plaintiff avers that there were no guard rails on said bridge. And plaintiff avers that defendant negligently erected or permitted the erection of said crane at said crossing, knowing it was to be used to hang the mail on, so that defendant's train need not stop or slow up in order to receive the United States mail at said station of Franklin, and that it was so used; and plaintiff avers that, when the mail was suspended from said crane, it was an object calculated to frighten a mule of ordinary gentleness, and that his mule was a reasonably gentle mule. And plaintiff avers that by...