Louisville & N.R. Co. v. Abernathy

• Decision Date: 04 February 1915
• Docket Number: 546
• Citation: 69 So. 57,192 Ala. 629
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. ABERNATHY.

69 So. 57

192 Ala. 629

LOUISVILLE & N.R. CO. v. ABERNATHY.

No. 546

Supreme Court of Alabama

February 4, 1915

Rehearing Denied June 3, 1915

Appeal from Circuit Court, Chilton County; W.W. Pearson, Judge.

Action by C.B. Abernathy against the Louisville & Nashville Railroad Company for damages for injuries to his minor child. Judgment for plaintiff, and defendant appeals. Affirmed.

Count 2, in brief, is:

That in December, 1913, plaintiff's minor son under the age of seven years, while on the track of defendant's railroad, was run against by a train upon the track of said railroad and injured, in Chilton county. [ Here follows catalogue of injuries.] Plaintiff avers that said injuries and damages to him were proximately caused by the negligence of servants or agents of defendant while acting within the line and scope of their authority and employment, which negligence consisted in this: Said servants or agents, after becoming aware of the peril of said minor son being run against by said train, negligently failed to use all the means at their command to avoid said train running against said minor son, and inflicting said injuries, when by the use of said means said train would have been prevented from running against plaintiff's said minor son, and inflicting said injuries.

The demurrers to the second count are as follows:

No facts are averred showing in what the alleged negligence complained of consisted. The averments of negligence set out in the complaint are not statements of fact, but mere conclusions of the pleader. It is not averred that the point at which plaintiff's minor son was attempting to cross the track of the railroad was a public crossing, and that the defendant owed the plaintiff's minor son any duty, the violation of which constitutes negligence complained of. For aught that appears plaintiff's minor son was a trespasser at the time he sustained the injuries complained of, and for aught that appears in the complaint the defendants, at the time he sustained the injuries, owed him no duty, the violation of which constitutes the negligence complained of. For aught that appears in the complaint the minor son of plaintiff was a trespasser upon the track at the time he sustained the injury complained of, and for aught that appears in said complaint said injuries may have been sustained by the minor son of the plaintiff without any knowledge of the defendant, and without a violation on their part of any duty which they may have owed to said minor son of plaintiff. While it is averred in said complaint that the injuries complained of were caused by defendant's negligence in running the train of defendant against plaintiff's minor son, no facts are averred showing in what such negligence consisted. Because it is not alleged that the agents, servants, or employés who injured plaintiff's minor son were acting within the line and scope of their authority as such employés. Said complaint fails to allege that plaintiff's minor son was lawfully upon the track of defendant. Said complaint fails to allege that plaintiff's minor son was injured while crossing the track of defendant.

The fourth plea is:

That because at and before the time of the occurrence of injury mentioned in the complaint the child alleged to be injured was in the custody and control of plaintiff as its father, and plaintiff was so negligent in and about the care and control of such child at the time the alleged injury occurred that said negligence contributed proximately to said alleged injury of said child, in that at the time of said injury said minor son of plaintiff was attempting to catch hold of the train of defendant, and while so doing was thrown under said train and injured, and plaintiff had permitted said minor child to go on the track of defendant unprotected said minor child being under five years of age; and that he (said plaintiff) permitted and allowed his said minor son to continue to go upon the track of defendant where trains were constantly passing, and that plaintiff's minor son was hurt and injured while he was trying to catch hold of a train of defendant, and without the negligence on the part of plaintiff said alleged injury would not have occurred.

The following charges were refused to defendant:

(2) It was not the duty of defendant's servants or employés to keep a lookout while going through the village of Mountain Creek for persons on the track or tracks of defendant.

(3) If the evidence convinces you that plaintiff's minor son was hurt or injured on some place on defendant's track other than a public crossing, your verdict should be for defendant.

(4) You have no right to find a verdict for plaintiff if, at the time of the injury, plaintiff's minor son was trying to catch hold of the train of defendant.

(6) If you are reasonably satisfied from the evidence that plaintiff's minor son was standing in the middle of the track of defendant, and the fireman who was in charge of the engine did not see him at the time that plaintiff's minor was injured, then you must find for defendant.

(7) If plaintiff's minor son was standing in the middle of the track of defendant when he was struck, then such minor was a trespasser upon the track of defendant; and, unless you are reasonably satisfied from the evidence that the agent employé, or servant discovered the danger of plaintiff's minor child, and failed to do what a reasonable man would have done to have averted the injuries to plaintiff's minor child, then you must find for defendant.

George W. Jones, of Montgomery, Smith & Gerald, of Clanton, and Powell & Hamilton, of Greenville, for appellant.

Middleton & Reynolds, of Clanton, and W.A. Denson, of Birmingham, for appellee.

GARDNER J.

Suit by the father to recover damages for injuries sustained by his minor son as a result of the alleged negligent conduct of a servant or employé of appellant.

The original complaint consisted of one count for simple negligence, and, after the argument of the case had been concluded, the court permitted the complaint to be amended by adding count 2, which was for subsequent negligence, and by striking count 1, and this over the objection of the defendant (appellant here).

Under our decisions, recovery could have been had for subsequent negligence upon the complaint as originally framed. Alabama Great Southern R.R. Co. v. McWhorter, 156 Ala. 269, 47 So. 84.

In view of this, and also in the light of our liberal statute of amendment (sections 5367 and 5368 of the Code of 1907), there was clearly no error in allowing the amendment of the complaint as indicated.

Count 2 was not subject to any assignments of demurrer interposed thereto. B.R.L. & P. Co. v. Saxon, Adm., 179 Ala 136, 59 So. 584.

The demurrer to plea 4, pleaded as it was to a subsequent negligence count, was properly sustained. Johnson v. Birmingham Railway Co., 149 Ala. 529, 43 So. 33.

It is insisted by counsel for appellant that the affirmative charge should have been given in its behalf, for the reason that the appellee based his right to recovery on subsequent negligence, and that in order to so recover it was necessary to show the one in charge of the engine had knowledge of the perilous condition of the child, and that such knowledge came to him in time for him to have averted the accident.

As we read the brief of counsel it seems to be the insistence that there must be affirmative and...