Louisville & N.R. Co. v. Mitchell

• Decision Date: 28 June 1902
• Citation: 134 Ala. 261,32 So. 735
• Parties: LOUISVILLE & N. R. CO. v. MITCHELL.
• Court: Alabama Supreme Court

32 So. 735

134 Ala. 261

LOUISVILLE & N. R. CO. v. MITCHELL.

Supreme Court of Alabama

June 28, 1902

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by Sallie Mitchell, administratrix, against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

The complaint originally contained three counts, and a fourth count was added by amendment. On the trial of the cause, the court gave the affirmative charge for the defendant as to the first, second, and fourth counts of the complaint; and the cause was tried upon issues made up under the third count of the complaint. The averments of negligence as contained in the third count of the complaint are shown in the opinion.

The defendants demurred to the third count upon the following grounds: "First. For that said count is inconsistent and repugnant. Second. For that the said count avers that the defendant wantonly or intentionally caused the death of plaintiff's intestate, and then undertakes to state the facts under which the death was caused and said facts, so stated, fail to show wanton or intentional negligence. Third. For that it is not shown by the court that the plaintiff's intestate was lawfully upon defendant's track, and no facts are stated which show that the defendant owed any duty to plaintiff's intestate at the time and place of the alleged injury. Fourth. For that the facts, as alleged, that the defendant's agent or servant had knowledge or notice that persons were, or would likely be upon the track of the said defendant, is not sufficient to charge the defendant with wanton or willful negligence in failing to see said persons or keep a lookout for them. Fifth. For that it appears by the count that the plaintiff's intestate was a trespasser upon the defendant's track, and the defendant owed no duty to the plaintiff's intestate to keep a lookout for him, nor is it averred or shown that the defendant knew, in time to stop the train and to prevent the accident to said intestate, that the said intestate was upon the track." This demurrer was overruled, to which ruling of the court the defendant duly excepted. Thereupon the defendants pleaded the general issue and several special pleas setting up the contributory negligence of the plaintiff.

Plaintiff demurred to the pleas setting up the contributory negligence of the plaintiff, upon the ground that such contributory negligence was no answer to the wantonness or intentional wrong as claimed in the third count of the complaint. These demurrers were sustained. The other facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently shown in the opinion.

There were verdict and judgment for the plaintiff, assessing her damages at $9,000.

Thos G. & Chas. P. Jones, J. M. Falkner, and Walker, Tillman Campbell & Porter, for appellant.

C. P. Beddow and Bowman & Harsh, for appellee.

HARALSON J.

1. Count 3 of the complaint was intended to be one for wantonness or willfulness, and was so treated on the trial. Against it, as a count of this character, a demurrer on several pertinent grounds was interposed, which was overruled.

The count alleges, that "defendant through its servant or agent in charge or control of said locomotive engine, wantonly or intentionally caused the death of plaintiff's intestate in the manner following, viz.: Said servant or agent, with knowledge or notice that numerous persons were or would likely be upon the tracks of said railroad in said town or village of Elmore, and would be in great peril of their lives from the rapid running of said engine through said town or village, without proper and sufficient warning or notice of the approach of said engine, wantonly or intentionally ran said engine through said town or village with great rapidity and without proper or sufficient warning or notice of the approach of said engine, and as a proximate consequence thereof, said engine ran upon or against plaintiff's said intestate in said town or village, and so injured him that he died."

While the count avers that the servant or agent of the company in charge of the engine wantonly or intentionally caused the death of plaintiff's intestate, it sets out in particularity in what the wantonness, and the intention to inflict the injury, consisted. The whole count must be construed together, and when so construed, the wantonness which in the first part of the count was averred in general terms, will be found to consist, if at all, in the facts particularly set up and relied on to show it. This averment of facts undertakes to point out specifically in what the wantonness, or intention of the servant or agent of the defendant to inflict the injury, consisted. Stripped of all unnecessary verbiage, the wanton or intentional act set up in this count is, that the engineer "wantonly or intentionally ran said engine through said town or village with great rapidity and without sufficient warning or notice of the approach of the engine," with knowledge or notice that numerous persons were or would likely be upon the tracks of said railroad--as a...