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

• Citation: 124 Ala. 113,27 So. 422
• Court: Supreme Court of Alabama
• Decision Date: 25 January 1900
• Parties: HIGHLAND AVE. & B. R. CO. v. ROBBINS.

27 So. 422

124 Ala. 113

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

Supreme Court of Alabama

January 25, 1900

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action by Florence B. Robbins, a minor, by her next friend James B Robbins, against the Highland Avenue & Belt Railroad Company. From an order overruling a demurrer to the complaint defendant appeals. Reversed.

The original complaint contained eight counts and eight additional counts were added by amendment. Demurrers were confessed to the 2d, 3d, 6th and 7th counts of the complaint and the general affirmative charge for the defendant was given as to the 5th, 8th and 16th counts; leaving for consideration on this appeal, the 1st, 4th, 9th, 10th, 11th 12th, 13th, 14th and 15th counts of the complaint.

The 1st count of the complaint was as follows: "The plaintiff claims of the defendant twenty-five thousand dollars damages for that on, to wit, the 6th day of March, 1897, defendant was a common carrier of passengers, propelling its cars and trains by steam locomotives or dummies, and through its employés or servants did carelessly or negligently run with great force and violence one of its trains, consisting of a locomotive or dummy and car or cars thereto attached and propelled as aforesaid along its railroad, which there lay and was built in and along Highland avenue, a public highway, against and over plaintiff, an infant of tender age, to wit, of nineteen months, while said plaintiff was on the track of defendant so situated as aforesaid; and defendant thereby cut off a part of plaintiff's left hand, including three fingers, and cut off a part of three fingers of plaintiff's right hand, and greatly bruised, crushed and hurt both of plaintiff's hands; and defendant thereby seriously and permanently injured and crippled plaintiff and permanently and greatly disfigured her personal appearance and caused her to suffer great pain of mind and body for a long period of time, and put her to great expense, to wit, two hundred dollars, in providing necessary medical attention, to the damage of plaintiff as aforesaid, wherefore she sued."

The averments of negligence as contained in the other counts which are to be considered on the present appeal are as follows:

4th Count. After alleging that the defendant was a common carrier, as in the 1st count, and without any averment that its track was built in or along a public highway, it was averred that the defendant carelessly and negligently ran its train against and over the plaintiff, an infant of 19 months, "while said plaintiff was on the track of defendant, at a point between Zinzer station and Violet station on defendant's railroad, to wit, 150 feet from Zinzer station, and, to wit, 250 feet from Violet station, while the defendant, through its servants or employés, was running its said train from Zinzer station towards Violet station. And plaintiff avers that at the point where, through its employés or servants, defendant so negligently ran its train against and over plaintiff, defendant's railroad runs a short distance, to wit, fifty feet, from and by the corporate limits of the city of Birmingham and without the same, and through a densely populated neighborhood or through a village situated close about defendant's stations aforesaid, inflicting the injuries complained of."

9th Count. After alleging that the defendant was a common carrier, with its railroad situated in and along Highland avenue, a public highway or street of an unincorporated village, to wit, Lake View, it is averred that the defendant carelessly or negligently ran its train over plaintiff, an infant of 19 months, "while the plaintiff was on the track of defendant, in and along Highland avenue, situated as aforesaid, between Zinzer and Violet stations," inflicting the injuries complained of.

10th Count. "The plaintiff further claims of the defendant the sum of twenty-five thousand dollars damages, for that on, to wit, the 6th day of March, 1897, defendant was a common carrier of passengers, propelling its cars and trains by steam locomotives or dummies along its railroad, and the defendant then did, through its servants, agents or employés, carelessly or negligently run with great force and violence, one of its trains, against and over plaintiff, an infant of tender age, to wit, 19 months, while the plaintiff was on or by the track of defendant, at a point where the track of the said defendant is intersected by Oak street, and in said Oak street, which is a public highway or street of an unincorporated town or village, to wit, Lake View."

11th Count. After averring that the defendant was a common carrier, and without any averments as to where the railroad was located, it is alleged that the defendant carelessly or negligently ran one of its trains over the plaintiff, an infant of 19 months, "while plaintiff was on or by the track of defendant between Zinzer and Violet stations, on said railroad, without the limits of any incorporated town or city, and at a point where a certain path or footway crossed the track of defendant's railroad, which path or footway was commonly used by pedestrians, so that many persons daily and constantly crossed and recrossed thereat, to the knowledge of defendant's servants, agents or employés in charge of said train," inflicting the injuries complained of.

12th Count. After averring that the defendant was a common carrier and without any averment as to where the railroad was located, it is alleged that the defendant carelessly or negligently ran one of its trains over the plaintiff, an infant of 19 months, "while plaintiff was on or by the track of defendant, at a point without the limits of any incorporated town or city, and between Zinzer and Violet stations, regular stations or stopping places on defendant's said railroad, which said stations are less than one quarter of a mile distant from one another, to wit, 400 feet," inflicting the injuries complained of.

13th Count.

"The plaintiff further claims of the defendant the sum of twenty-five thousand dollars damages, for that on, to wit, the 6th day of March, 1897, the defendant was a common carrier of passengers, propelling its cars and trains along its railroad by steam locomotives or dummies, and carelessly or negligently ran one of its trains against and over plaintiff, an infant of tender age, to wit, 19 months, while the plaintiff was attempting to cross the track of defendant at a point without the limits of any incorporated town or city, and between Zinzer and Violet stations on the defendant's said railroad, which said stations were a distance of, to wit, four hundred feet apart," inflicting the injuries complained of.

14th Count. After averring that the defendant was a common carrier, and without any averment as to where the railroad was located, it is alleged that the defendant carelessly or negligently ran one of its trains over the plaintiff, an infant of 19 months, "while the plaintiff was on the track of defendant, without the limits of any incorporated town or city, and between Zinzer and Violet stations," inflicting the injuries complained of.

It is not necessary to set out the averments of the 15th count of the complaint, as the overruling of the demurrers to said complaint are not assigned as error.

To each of the counts as above set forth, the defendant separately demurred upon the grounds which were substantially as follows: (1) It does not show what duty the defendant owed plaintiff. (2) It appears from the averments of each of said counts that the plaintiff was a trespasser on defendant's track. (3) It is not shown that the defendant was guilty of any negligence towards the plaintiff. (4) It is not shown that the defendant violated or neglected any duty towards the plaintiff which caused or contributed to cause the injuries complained of. (5) The facts alleged in said count do not show any negligence for which the defendant was liable or chargeable. (6) That said count is uncertain and indefinite in this, that it combines therein an action of trespass with trespass on the case. (7) It is not alleged that defendant's servants knew that plaintiff was on the track of defendant. (8) It is not alleged that defendant's servants knew that plaintiff was in a dangerous place. (9) It is not alleged that the servants of defendant inflicted the injuries willfully, wantonly or intentionally. (10) It is not alleged or shown that the plaintiff was on the track of defendant at the time of the alleged injury, for any necessary or lawful purpose.

To the 4th, 9th, 11th, 12th and 14th counts the following additional demurrers were also interposed: (1) That it is not shown that the employés of defendant could have seen or discovered that the plaintiff was on the track or in a place of danger before the alleged injury. (2) That it is not shown by said count that the employés of defendant could by the exercise of any degree of care have discovered that the plaintiff was on the track or in a place of danger before the alleged injury. (3)...