Gadsden & A.U. Ry. Co. v. Julian

• Court: Supreme Court of Alabama
• Writing for the Court: SHARPE, J.
• Citation: 133 Ala. 371,32 So. 135
• Decision Date: 22 May 1902
• Parties: GADSDEN & A. U. RY. CO. v. JULIAN.

32 So. 135

133 Ala. 371

GADSDEN & A. U. RY. CO.
v.
JULIAN.

Supreme Court of Alabama

May 22, 1902

Appeal from city court of Gadsden; John H. Disque, Judge.

Action by R. W. Julian, administrator, against the Gadsden & Attalla Union Railway Company. Judgment for plaintiff, Defendant appeals. Reversed.

The first and fourth counts of the complaint were as follows: "First. The plaintiff, who sues as the administrator of the estate of James C. Julian, deceased, claims of the defendant corporation the sum of twenty-five thousand dollars as damages for the negligent killing of plaintiff's intestate, a minor less than eleven years of age, by running against and over plaintiff's intestate with an electric car, which said killing occurred on or about the 22d day of June, 1900." "Fourth. The plaintiff, who sues as the administrator of the estate of James C. Julian, deceased, claims of the defendant the sum of twenty-five thousand dollars as damages for the negligent killing of plaintiff's intestate, a minor less than eleven years of age, by running against him with an electric car, which said killing occurred on or about the 22d day of June, 1900, in Etowah county, Alabama." To the first and fourth counts of the complaint the defendant separately demurred upon the following grounds: (1) They show no duty the defendant owed the plaintiff which they negligently failed to perform. (2) They show that plaintiff's intestate was a trespasser on defendant's track, and they aver nothing more than simple negligence in his killing. (3) They do not show the particular act of negligence complained of. (4) They do not state the particular acts or matters which constitute the willful, wanton, or intentional negligence complained of. (6) They are too vague and uncertain. (7) They fail to allege any facts which show willful, wanton, or intentional negligence. There is a recital in the record that "defendant demurs to the third count on the same grounds set out in his demurrer to the second count, assigning each ground separately"; but the grounds of the demurrer to the second count do not appear in the record. The court overruled the defendant's demurrers to the complaint. On the present appeal the defendant assigns as error the court's overruling its demurrers to the complaint.

Dortch & Martin and W. J. Boykin, for appellant.

Goodhue & Blackwood, for appellee.

SHARPE, J.

Counts 1 and 4 of the complaint are each wanting in particularity of averment in...