Liverett v. Nashville, C. & St. L. Ry.

• Decision Date: 12 February 1914
• Docket Number: 654
• Citation: 65 So. 54,186 Ala. 111
• Parties: LIVERETT v. NASHVILLE, C. & ST. L. RY.
• Court: Alabama Supreme Court

65 So. 54

186 Ala. 111

LIVERETT v. NASHVILLE, C. & ST. L. RY.

No. 654

Supreme Court of Alabama

February 12, 1914

Rehearing Denied April 23, 1914

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by Lora Liverett, as administratrix, against the Nashville Chattanooga & St. Louis Railway. From a judgment for defendant, plaintiff appeals. Affirmed.

McCord & Davis, of Gadsden, for appellant.

Spragins & Speake, of Huntsville, and Street, Isbell & Bradford, of Guntersville, for appellee.

SOMERVILLE J.

The fourth count of the complaint is deficient in failing to aver knowledge on the part of the trainmen of such conditions as rendered it likely that some one would be upon the track at the point described, and exposed to danger in the absence of the omitted precautions. Such knowledge is the very essence of wanton or willful injury. C. of Ga. Ry. Co. v Foshee, 125 Ala. 201, 226, 27 So. 1006; Peters v Southern Ry. Co., 135 Ala. 533, 33 So. 332; Southern Ry. Co. v. Stewart, 60 So. 927. Moreover, plaintiff had the full benefit of this issue under other counts of his complaint. There was neither error nor prejudice in sustaining the demurrer to this count.

Defendant's second plea, viz., that plaintiff's intestate "was a trespasser on the track at the time and place when and where he was killed," if deficient, was impugned only by general grounds of demurrer, which were properly overruled.

The fourth plea, viz., that plaintiff's intestate, "when injured, was walking along said track, or standing on it, or sitting or lying down thereon," is attacked on the ground that it does not appear but that defendant made no effort to prevent the injury, or that it wantonly or willfully killed the intestate because he was on the track. It is true that the averment of the first count that defendant "so negligently conducted its said business that one of its locomotives ran over the plaintiff's intestate is broad enough to cover subsequent negligence on the part of the engineer (C. of Ga. Ry. Co. v. Foshee, 125 Ala. 199, 217, 27 So. 1006), and so to support a recovery therefor; nevertheless, when it appears from the complaint alone, or from the complaint and a plea combined (as here), that the intestate was a trespasser upon the defendant's track or right of way, this imposes upon the plaintiff the burden of further alleging that the defendant's servant failed to use due diligence to avoid the injury after discovering the peril. It is sufficient to say of this plea that it is a direct traverse of the material averments of the complaint that the intestate was killed while crossing the track, or while passing along the highway at a public crossing, and was in effect a plea of the general issue, and not subject to the demurrer.

The trial court properly instructed the jury that they could not find for plaintiff on the wanton counts. There was no evidence offered as to the number of the population of Boaz or the vicinity of the crossing, nor was it shown that people crossed even at the public crossing--to say nothing of the little trail where the injury occurred, and which was nearly 200 feet...