Louisville & N.R. Co. v. Vansant

• Court: Supreme Court of Alabama
• Writing for the Court: DENSON, J.
• Citation: 48 So. 389,158 Ala. 527
• Parties: LOUISVILLE & N. R. CO. v. VANSANT.
• Decision Date: 14 January 1909

48 So. 389

158 Ala. 527

LOUISVILLE & N. R. CO. v. VANSANT.

Supreme Court of Alabama

January 14, 1909

Appeal from Circuit Court, Calhoun County; A. H. Alston, Judge.

Action by John W. Vansant against the Louisville & Nashville Railroad Company. From a judgment overruling demurrers to the complaint, defendant appealed. Reversed and remanded.

The complaint was as follows: "Plaintiff claims of defendant the sum of $10,000 as damages, for that, whereas, heretofore the defendant, on or about October 2, 1906, was operating a railroad for the transportation of freight and passengers for hire in Calhoun county, Alabama, and at a point where said railroad crosses the public road near Union Church, in Calhoun county, Alabama, leading from Jacksonville to Morrowville, there was a railroad embankment about five or six feet high and about eight feet wide. Plaintiff is and was a physician, and while proceeding about his business as a physician, and driving his horse and buggy, he came to the place where said public road (which is and has been a public road for many years) crosses said railroad, which is at grade with said public road; and plaintiff avers that defendant through its agents, employés, and servants, whose names are unknown to plaintiff, but known to defendant, had negligently put and set a hand car or lever car in said public road, not on the railroad track, but in said public road near said railroad track. Plaintiff avers that it became necessary to pass said hand car or lever car, and in attempting to pass said hand car or lever car in said public road, which was on said fill or embankment, his horse became frightened at it and shied thereat, so that in passing it the rear wheel of his buggy struck the car, which contained some tools and dinner buckets, and thereby made a lot of unusual noise which frightened said horse the more. The said horse then jumped, throwing plaintiff from the buggy, inflicting many painful wounds, in this: [Here follows the catalogue of his injuries.] Plaintiff further avers that by reason of said negligence of said railroad as aforesaid he was injured as aforesaid. [ Here follows a lot of special damages.]"

The following demurrers were filed to this complaint: "(1) It is not averred that said hand car or lever car was an object which is calculated to frighten horses. (2) It is not averred that plaintiff's injuries were the direct or proximate result of the negligence of defendant's employés in placing said car in said road. (3) For that it appears from said count that plaintiff's injury was the direct result of his horse becoming frightened. (4) For that it appears that the plaintiff's injuries were the direct and proximate result of his said horse jumping."

The second count was the same as the first, except that it charged gross, instead of simple, negligence. The same demurrers were assigned to it.

Knox Acker & Blackmon, for appellant.

Willett & Willett, for appellee.

DENSON J.

The plaintiff claims damages from the defendant for personal injuries suffered by plaintiff, consequent upon the alleged negligence of defendant's servants in placing a hand car in a public highway near defendant's railroad track thereby causing plaintiff's horse to become frightened and to jump, throwing plaintiff from his buggy and inflicting serious personal injuries upon him. The complaint is attacked by demurrer, upon the ground that it fails to aver that the car was an object calculated to frighten horses. Whether or not the complaint is subject to this demurrer depends upon what, according to its averments, constitutes the cause of action. The theory of construction out of which the demurrer grows is...