Louisville & N.R. Co. v. Sharp

• Decision Date: 20 April 1911
• Citation: 171 Ala. 212,55 So. 139
• Parties: LOUISVILLE & N. R. CO. v. SHARP.
• Court: Alabama Supreme Court

55 So. 139

171 Ala. 212

LOUISVILLE & N. R. CO. v. SHARP.

Supreme Court of Alabama

April 20, 1911

Appeal from Circuit Court, Wilcox County; B. M. Miller, Judge.

Action by John Thomas Sharp against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

E. N. &amp P. E. Jones, Geo. W. Jones, and J. M. Foster, for appellant.

Miller Bonner & Miller, for appellee.

SAYRE J.

In framing count C it was most likely the purpose of the pleader to state a case of intentional or wanton injury. The demurrer took the point that the count involved inconsistencies. It does fail to observe the distinction between intentional wrong and that wantonness which is the equivalent of intentional wrong, on one hand, and mere negligence or inadvertence, implying the absence of mental action in respect to the thing done, on the other. But nothing more need be said of the ruling on demurrer to the count, since that ruling is not assigned for error.

However rulings of the court upon demurrers to pleas of contributory negligence again showed the court's opinion that this count contained a sufficient statement of intentional and wanton injury. In this there was error. Plaintiff was in the defendant's employment as one of a bridge crew, and was injured by falling from the hand car on which he was at the time riding. Another car of the same description was following close behind. The substance of the charge made by the count is that one Murphy, who was foreman of the crew and in charge of the car "willfully and wantonly engaged the car on which plaintiff was riding and working in a race with said rear car, and said front car was run at a great and excessive rate of speed, and by reason of the willful and wanton negligence of Steve Murphy in so engaging in said race and running said car at great and excessive speed the plaintiff was caused to fall therefrom, and was hurt." The count fails to charge either willful or wanton wrong. The plaintiff was at liberty to state in a very general way that Murphy willfully or wantonly caused his injury, and the means adopted in producing that result. But that is not the effect of the form of allegation adopted. To engage one car in a race with another, even though it be driven with great and excessive speed, does not necessarily involve an intention to injure. Nor does the allegation of such fact, without more necessarily involve the inference that the act charged was done with a present consciousness that it would, under conditions known to exist at the time, probably result in disaster. That plaintiff would fall from the car did not necessarily follow from its operation at a great and excessive rate of speed. That one fact did follow upon the other does not necessarily indicate any mental action on the part of Murphy in respect to the relation of cause and effect between the two facts. As for everything alleged in the count, plaintiff's fall never came within the field of Murphy's mental vision, nor was it such a necessary consequence of what he is alleged to have done that he must for reasons of policy be held to have had it in contemplation. In short, consistently with everything alleged,...