Appeal
from city court of Birmingham.
Action
by Johnson Jefferson, a minor, by his next friend, against
the Birmingham Railway & Electric Company for personal
injuries caused by defendant's negligence. From a
judgment in favor of defendant on plaintiff's failure to
plead further after a demurrer to the complaint was
sustained, plaintiff appeals. Affirmed.
The
complaint, as amended, contained five counts, which were as
follows: "The plaintiff claims of the defendant
twenty-five thousand dollars as damages, for that
heretofore, on, to wit. October 9, 1896, defendant was
operating and controlling a certain train composed of a steam
locomotive engine, known as a 'dummy,' and certain
cars; that on said day said engine and cars were being moved
by defendant over and along a certain street or streets of
Bessemer, Alabama, at a low rate of speed, and occasionally
coming to a stop; that the track upon which said train was
being operated as aforesaid was upon a grade with the said
street or streets; that said cars moved, stopped and operated
as aforesaid, were attractive to children and would tend
naturally to cause children to desire to get upon them; that
said cars ran and operated upon said streets in the manner
aforesaid were highly dangerous to children old enough to get
upon them and too young to appreciate the danger, unless said
cars were properly attended or guarded; that it became the
duty of defendant operating said cars as aforesaid, through
its servants or agents, to properly attend or guard said cars
while the same were being operated as aforesaid, but
disregarding said duty, defendant, through its servants or
agents negligently failed to have a conductor upon said cars
at said time or otherwise to properly attend or guard said
cars while same were being operated as aforesaid and in
consequence thereof plaintiff, who was a boy under the age of
seven years, to wit, of the age of five years, got upon one
of said cars and was thrown or fell therefrom and was run
upon by one of said cars and was so lacerated, mangled and
bruised that he lost one of his legs, and was crippled and
disfigured for life, and was rendered, for life, less able to
work and earn money, and was caused to suffer great mental
and physical pain.
"Second
Count. Plaintiff claims of defendant the further sum of
twenty-five thousand dollars as damages, for that heretofore
to wit, on the 9th day of October, 1896, defendant caused
certain small cars to be operated by means of a small
locomotive known as a 'dummy,' upon a certain public
street or streets of Bessemer, Alabama, without sufficient
precautions being taken to prevent children getting upon
them; that it was highly dangerous for children to be upon
said cars unless said children were properly attended
watched or guarded to prevent their falling or being thrown
from said cars; that said cars operated as aforesaid, would
naturally attract children to get upon them and children
would likely get upon them unless proper precautions were
used to prevent; that plaintiff who was a boy under the age
of seven years, to wit, of the age of five years, was
attracted to get upon said cars by the natural instincts of
childhood and got upon one of said cars by reason thereof
and it then became and was the duty of defendant to use due
care to prevent plaintiff from falling or being thrown from
said car, but defendant negligently failed to perform said
duty and as a proximate consequence of said failure plaintiff
fell or was thrown from said car and suffered the injuries
and damage set out in the first count of the complaint.
"Third
Count. Plaintiff claims of defendant the further sum of
twenty-five thousand dollars as damages for that heretofore
to wit, on the 9th day of October, 1896, defendant was
running and operating, over and along its tracks upon the
streets of Bessemer, Alabama, a certain train composed of a
steam locomotive engine, known as a 'dummy engine,'
and one or more cars; that defendant, through its servants or
agents, negligently caused or allowed plaintiff, who is a boy
under the age of seven years, to wit, of the age of five
years, to get upon one of the said cars without any guardian
or other proper attendant and in consequence thereof
plaintiff fell from said car and was run over by one of said
cars and suffered the injuries and damage set out in the
first count of the complaint.
"Fourth
Count. Plaintiff claims of defendant the further sum of
twenty-five thousand dollars as damages for that, heretofore
to wit, on the 9th day of October, 1896, defendant was
operating and running a dummy line, among other places, upon
certain streets of Bessemer, Alabama; that on said day
plaintiff who was a boy under the age of seven years, to wit,
of the age of five years, got upon one of the cars of said
dummy line and defendant, through its servant or agents,
recklessly and wantonly or intentionally caused plaintiff to
leave said car while same was in motion, and, in consequence
thereof, plaintiff suffered the injuries and damages set out
in the first count of the complaint. All to plaintiff's
damage twenty-five thousand dollars, wherefore he sues.
"Fifth
Count. Plaintiff claims of defendant the further sum of
twenty-five thousand dollars as damages for that, heretofore
on, to wit, October 9, 1896, defendant was operating and
controlling a certain train composed of a small steam
locomotive engine and certain small cars upon a certain
public street or streets of Bessemer, Jefferson county,
Alabama, without any one upon said cars, and without
sufficient precautions being taken to prevent children
getting upon them; that it was highly dangerous for children
to be upon said cars, unless said children were properly
attended, watched or guarded, to prevent their falling or
being thrown from said cars; that said cars operated as
aforesaid, were highly attractive to children; that plaintiff
who was a boy under seven years of age, to wit, of the age of
five years, was attracted to get upon said cars by the
natural instincts of childhood, and got upon one of said cars
on a place thereon highly dangerous to him, without any
attendant or guardian, and defendant knew or could by the
exercise of due care have known that plaintiff was upon said
cars in said dangerous place without any attendant or
guardian, and defendant negligently failed to take any proper
care or precaution to prevent injury to plainti...
