Knight v. Tombigbee Valley R. Co.

• Decision Date: 17 December 1914
• Docket Number: 852
• Citation: 67 So. 238,190 Ala. 140
• Parties: KNIGHT v. TOMBIGBEE VALLEY R. CO.
• Court: Alabama Supreme Court

67 So. 238

190 Ala. 140

KNIGHT v. TOMBIGBEE VALLEY R. CO.

No. 852

Supreme Court of Alabama

December 17, 1914

Rehearing Denied Jan. 21, 1915

Appeal from Circuit Court, Washington County; John T. Lackland Judge.

Action by Woodie S. Knight against the Tombigbee Valley Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Granade & Granade, of Chatom, for appellant.

Inge &amp Armbrecht, of Mobile, for appellee.

SOMERVILLE J.

The defendant company, a common carrier, was operating a mixed train of passenger and freight cars, and three of the freight cars left the track while moving at a speed of about 15 miles an hour, resulting in a severe shake-up of the passenger coach, upon which the plaintiff was riding, and (as alleged) personal injury to the plaintiff by being thrown forward against a car seat.

Counts 1, 5, and 6 of the complaint are defective in not showing any duty owed by the defendant to the plaintiff. Count 3 alleges that the injury was due "to the willful and wanton acts of defendant, who was then and there operating its trains etc., which train was operated without a headlight, although the injury was done at night." This count is not sufficient, for the reasons stated in Johnson v. B.R.L. & P. Co., 149 Ala. 529, 43 So. 33. The trial court properly sustained the demurrers to these several counts.

As amended, counts 1, 2, 4, and 5 of the complaint are based simply upon the defendant's negligence in the operation of the train; count 3, upon operating the train "without a headlight," no negligence being otherwise charged count 6, upon defendant's negligence "in constructing and equipping its engines, locomotives, and coaches, or cars, on which plaintiff was traveling"; count 7, upon "the willful and wanton acts of the said defendant *** in the operation of its trains at a point between Fairford and Calvert"; and count 8, upon the willful and wanton wrecking of the train, by the servants of defendant. Other than the mere fact that the wheels of the three freight can left the rails, and the statement of one witness that the cross-ties looked rotten, there is nothing in the evidence which tends in any way to indicate the cause or causes of the wreck. The testimony of the conductor, who was a witness for plaintiff, shows that there was no defect in the wheels of the cars, or in their equipment, which could have caused the derailment. Conceding that there was no headlight on the engine, it is clear that its absence had nothing to do with the derailment of the cars behind the engine, which was not itself derailed; and no obstruction was found about the track by the conductor, who promptly made an...