Curry v. Southern Ry. Co.
| Decision Date | 15 November 1906 |
| Citation | 148 Ala. 57,42 So. 447 |
| Parties | CURRY v. SOUTHERN RY. CO. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Hale County; John Moore, Judge.
"To be officially reported."
Action by M. Curry, administrator, against the Southern Railway Company. Judgment for defendant. Plaintiff appeals. Reversed.
P. A Tutwiler and T. E. Knight, for appellant.
A. M Tunstall and Pettus, Jeffries & Pettus, for appellee.
In disposing of this case it will be sufficient to deal with those assignments of error which complain of the sustaining of the demurrers to amended count 4 and count B as last amended, which counts had been filed and amended by leave of the court. We have not been favored with a brief for appellee, and hence are not advised as to which grounds of the demurrers induced the judgment of the court, nor which are specially relied on to support the judgment sustaining the demurrers.
Count 4, as amended, claims damages for the killing of a hog of the plaintiff by an engine of the defendant, which killing, the count avers, occurred "by reason of the negligence of the defendant in permitting and suffering its right of way to grow up" in bushes, briars, and weeds, which concealed the hog from the view of the engineer until it approached so near to the track that the engineer could not check the train in time to prevent the killing. Count B proceeds upon the same theory, but with more of elaboration and particularity of detail. The only grounds of demurrer we need note are the following: (1) That the count was a departure; (2) that it appeared to be barred by the statute of limitations of one year; (3) that it is not shown that the negligence charged contributed to the killing or was the proximate cause thereof, nor is causal connection between the negligence and the killing averred; (4) that the count sets up no cause of action. We will briefly consider these objections in inverse order.
The fourth ground above stated was merely a general demurrer. The demurrer does not controvert, but rather assumes, that it was negligence on the part of the defendant to allow its right of way to grow up with weeds, etc., as alleged, but asserts a want of an appropriate averment of the causal connection between the negligence and the injury. Although the count does not employ the word "proximately," nor allege in so many words that the negligence contributed to the killing, yet it does allege that the hog was killed by reason of the negligence of the defendant in the manner specified. This was sufficient. Counts have been many times approved by this court which were no more specific than this one, and which did no more than aver that an injury was caused by, or that it occurred by reason of, the negligence complained of. This is treated as the equivalent of an averment that the injury was proximately caused by the negligence. L. & N R. R. Co. v. Hawkins, 92 Ala. 241, 9 So. 271; Armstrong v. Montgomery S. Ry. Co., 123 Ala. 233, 26 So. 349, and cases there cited.
The defense of the statute of limitations, if it exists, should be made by plea, and not by demurrer, in courts of law. Huss v. Central R. & B. Co.,...
To continue reading
Request your trial
-
Chicago, Burlington & Quincy R. Co. v. The WC Harms
...O. Ry. Co. v. Mason, 169 Ky. 699, 185 S.W. 71. Bass v. Chicago, Burlington & Quincy R. Co., 28 Ill. 9, 81 Am.Dec. 254; Curry v. Southern R. Co., 148 Ala. 57, 42 So. 447; Ft. Worth Belt Ry. Co. v. McKinney, Tex. Civ.App., 145 S.W. 666; Eames v. Texas & N. O. R. Co., 63 Tex. 660. 4 The author......
-
Alabama Great Southern R. Co. v. Johnston, 2 Div. 493
...cases we have found dealing with the subject are Atlantic Coast Line R. Co. v. Carter, 214 Ala. 252, 107 So. 218, and Curry v. Southern Ry. Co., 148 Ala. 57, 42 So. 447. The last cited case is not apt authority because the rule in Alabama which prevails as to livestock, does not obtain as t......
-
Weston v. National Mfrs. & Stores Corp.
...and sufferings was (sic) caused by the negligence of the defendant, etc.' (Emphasis supplied.) This was sufficient. In Curry v. Southern Ry. Co., 148 Ala. 57, 42 So. 447, it was said: * * * Although the count does not employ the word 'proximately,' nor allege in so many words that the negli......
-
Bridwell v. Brotherhood of Railroad Trainmen
...contention relates to a bar of the statute of limitations, a plea is the only method of presenting it in a court of law. Curry v. So. Rwy. Co., 148 Ala. 57, 42 So. 447; Pyle v. Pizitz, 215 Ala. 398, 110 So. 822; Camp, W. O. W., v. Carrell, 218 Ala. 613, 119 So. 640. Counsel make an extensiv......