Evans v. Southern Ry. Co.

• Decision Date: 21 May 1902
• Citation: 32 So. 138,133 Ala. 482
• Parties: EVANS v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

32 So. 138

133 Ala. 482

EVANS v. SOUTHERN RY. CO.

Supreme Court of Alabama

May 21, 1902

Appeal from circuit court, Hale county; John Moore, Judge.

Action by A. P. Evans against the Southern Railway Company for stock killed by defendant company. From a judgment for defendant plaintiff appeals. Reversed.

This was an action brought by the appellant, A. P. Evans, against the appellee, the Southern Railway Company. The suit was originally commenced in a justice of the peace court, and was carried by appeal to the circuit court. In the circuit court the plaintiff filed a complaint containing two counts. In the first count the plaintiff sought to recover the sum of $30 for the killing of two hogs by a train operated on the defendant's railroad track, and averred in said count that the defendant "so negligently operated said locomotive and train of cars attached thereto that in consequence of the negligence of the defendant, its agents servants, or employés, two h gs of the plaintiff were run over" by said locomotive or train of cars and were killed. In the second count, after averring that the plaintiff's two hogs were run over and killed by a train of cars operated on the defendant's track, the plaintiff then averred as follows: "That the defendant had contracted with him in construction of a right of way through and over this plaintiff's land, that they would keep said railroad fences on both sides through plaintiff's land and keep and maintain cattle guards at the boundary of plaintiff's land; and plaintiff avers that defendant did construct such fences and cattle guards, but that the defendant negligently and carelessly allowed the said fences and cattle guards to get out of repair or become destroyed. And plaintiff avers that, by reason of such negligence and failure of duty on the part of defendant, plaintiff's hogs entered upon the right of way and railroad track of defendant." The defendant demurred to this complaint upon the ground that there was a misjoinder of counts, in that count No. 1 was ex delicto, and count No. 2 was ex contractu. This demurrer was sustained. After the demurrer to the complaint containing the two counts was sustained, the plaintiff filed another count, numbered 3, in which he averred the operation by the defendant of a train of cars along its road, and that said train of cars so operated by the defendant ran over and killed the two hogs belonging to the plaintiff. The third count of the complaint then continued as follows: "And plaintiff avers that the defendant had contracted with him, to wit, January 1, 1876 in consideration of a right of way through and over the plaintiff's land, that it would keep its said railroad track fenced on both sides through plaintiff's land, and to keep and maintain cattle guards at both ends or boundaries. And plaintiff avers that defendant did construct such fences and cattle guards in consideration of the grant of the right of way by plaintiff to defendant over plaintiff's lands, but that the defendant prior to October 25, 1899, failed and refused to keep the same in repair, and that, by reason of such failure and refusal to do and perform what they had contracted to do, two hogs of defendant entered upon the right of way of defendant, and were killed by defendant's engine and cars, to the damage of plaintiff $30." The defendant demurred to this complaint upon the following grounds: "(1) Because said count fails to allege where said contract was made. (2) Because said count fails to allege whether said contract was in writing. (3) Because said count fails to allege when said contract was broken by defendant. (4) Because said count fails to state any cause of...