Highland Ave. & B.R. Co. v. Sampson

• Decision Date: 23 June 1896
• Citation: 20 So. 566,112 Ala. 425
• Court: Alabama Supreme Court
• Parties: HIGHLAND AVE. & B. R. CO. v. SAMPSON.

20 So. 566

112 Ala. 425

HIGHLAND AVE. & B. R. CO. v. SAMPSON.

Supreme Court of Alabama

June 23, 1896

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

This action was brought by the appellee, Goode Sampson, against the appellant, the Highland Avenue & Belt Railroad Company to recover damages for killing a mule and destroying a wagon the property of the plaintiff. The injury complained of was inflicted on November 15, 1888, and the present suit was instituted on December 3, 1888. The complaint as originally filed contained one count, which, after averring the operation by the defendant of a dummy line along and upon the streets and avenues of the city of Birmingham as a street railroad, carrying passengers thereon, averred that on November 28, 1888, the plaintiff's mule, hitched to a wagon, was being properly and carefully driven through the streets of Birmingham, "at or near to a point where Avenue B intersects and crosses 22d street, in said city, and defendant was running its said cars upon on its said line of railroad upon said last-named street, and then did, by its employés and agents, carelessly and negligently cause its said cars, at said time, to be run thereon at an unusually high and dangerous rate of speed, and negligently failed to ring a bell, or to in any manner warn or signal people crossing its tracks, or upon said streets, of the near approach of said cars to the aforementioned place, and negligently failed to keep and maintain a proper watch and lookout to avoid collisions, with vehicles and people using the streets of said city at said place, and negligently failed and neglected to keep their said cars under safe and proper control at said time, and recklessly and negligently ran their said cars at said place against and over the mule and wagon owned by plaintiff, as aforesaid, which at said time was being driven upon said streets, at the time and place aforementioned, thereby killing the said mule, and breaking said wagon and harness in such a manner as to render them of no value." After the remandment of the cause by this court on the former appeal (8 So. 778), the defendant demurred to the original complaint, on the ground that it was ambiguous, and that there were joined therein several independent causes of action. This demurrer was overruled. Subsequently, on March 30 and 31, 1893, plaintiff amended his complaint by adding thereto the second, third, fourth, fifth and sixth counts. In these counts, the negligence complained of was averred in each of them, respectively, as follows "(2) Defendant so carelessly and negligently conducted itself in the running and operation of its locomotive engine and cars at or near the crossing of Avenue B and 22d street the same being public highways of said city, and over, along, and across which the tracks of defendant's railroad extended, that a locomotive engine of defendant was, by the carelessness and negligence of defendant's employés, run against the mule and wagon of plaintiff; and, by the careless and negligent management and operation of said locomotive engine and cars by defendant's employés, the plaintiff's said mule was killed, and his said wagon and harness greatly broken and damaged. (3) Defendant carelessly and negligently conducted itself in the running, operation, management, and control of its locomotive engine, and in violation of the ordinances of said city of Birmingham in force on said day and date, regulating the running, operation, management of said locomotive engines along, over, and across said streets and avenues of said city. Said ordinance was in substance and tenor as follows: 'Sec. 474. Any person who causes, permits or suffers any locomotive engine to run within the limits of the city at a greater rate of speed than eight miles per hour when running forward, or four miles per hour when running backward, or who causes, permits or suffers any locomotive engine or train to run or move in the nighttime without having a headlight, or who shall cause, permit or suffer any locomotive or train to run at any time without causing the usual signals to be given continuously, by ringing the bell or otherwise, must, on conviction, be fined not less than one nor more than one hundred dollars.' At or near the intersection of Avenue B and 22d street, a locomotive engine of defendant was, by the carelessness and negligence of defendant's employés, in violation of said ordinance of said city, run against the mule of plaintiff, and by the said careless and negligent running, management, operation, and control of said locomotive engine, and of defendant's employés, as aforesaid; and said mule was killed, and his said wagon and harness greatly damaged, and all to the damage of plaintiff in the sum of two hundred and fifty dollars. And the plaintiff avers that defendant did cause, permit, or suffer its locomotive engine, on said day, at said place, to run at a greater rate of speed than eight miles an hour running forward, in violation of said city ordinance. (4) Defendant did permit, cause, or suffer its locomotive engine to run at said place and time backward at a greater rate of speed than four miles an hour, in violation of said city ordinance, which said ordinance is set forth in 3d count of this complaint, and made a part hereof; and, by reason of said carelessness and negligence of defendant's employés, the said mule of plaintiff was run against and killed, and his wagon and harness greatly damages, and all to plaintiff's damage aforesaid. (5) That defendant, by its employés, was operating a railroad over and along the streets and avenues of city of Birmingham, Alabama, at, to wit, about 28th November, 1888, and did cause, permit, or suffer its said locomotive engine to run or move in the nighttime, at said time and place , without having a headlight, in violation of said ordinance of the city of Birmingham which is set forth in 3d count of this complaint, and made a part hereof; and that, by said carelessness and negligence of defendant's employés, said locomotive ran against plaintiff's mule, and killed it, and greatly damaged his wagon and harness, and all to his damage as aforesaid. (6) Defendant, at said time and place, did, by its employés, operate a railroad along and over the streets and avenues of the city of Birmingham, Ala., at or about 28th November, 1888, and then and there run its locomotive and train without causing the usual signals to be given continuously, by ringing the bell or blowing the whistle, in violation of said city ordinance; and that, by the said carelessness and negligence of defendant's employés as aforesaid, said locomotive engine was run, at, to wit, the intersection of Avenue B and 22d street, in said city, on or about the 28th day of November, 1888, against the mule of plaintiff, and killed it, and greatly damaged his wagon and harness, and all to his damage in the sum aforesaid." To the third, fourth, fifth, and sixth counts the defendant demurred, upon the grounds that there are joined in said counts several independent, substantive causes of action; that it was not averred in said counts in what respect the defendant violated the alleged ordinance; the said counts set up new and independent causes of action. The demurrers to these counts of the complaint were overruled, and the defendant thereupon interposed to said third, fourth, fifth, and sixth counts the following pleas: "(1) That the causes of action therein alleged did not accrue within one year before the filing of the said counts; (2) that the causes of action are barred by the statute of limitations of one year." To these pleas the plaintiff demurred, upon the grounds that said amendments did not make new and independent causes of action, and that the filing of the amendment is not the commencement of the suit in this cause. This demurrer was sustained, and the defendant pleaded the general issue, and, by special plea, the contributory negligence of the plaintiff, in that the driver did not stop and listen for defendant's train before attempting to cross the track. Upon these pleas issue was joined.

Upon the trial of the cause, it was shown that the plaintiff's driver was driving a mule attached to a wagon in a westerly direction, along Avenue B, in the city of Birmingham, on the 28th of November, 1888...