Louisville & N.R. Co. v. Hubbard

• Decision Date: 30 June 1906
• Citation: 148 Ala. 45,41 So. 814
• Parties: LOUISVILLE & N. R. CO. v. HUBBARD.
• Court: Alabama Supreme Court

41 So. 814

148 Ala. 45

LOUISVILLE & N. R. CO. v. HUBBARD.

Supreme Court of Alabama

June 30, 1906

Appeal from Circuit Court, Bibb County; John Moore, Judge.

"To be officially reported."

Action by R. H. Hubbard against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action for injury to a horse. There were three counts in the complaint, the second of which was eliminated. The first count was in words and figures as follows "Plaintiff claims of the defendant, a corporation doing business in Bibb county, Ala, $100 as damages because, he says, that on, to wit, the 14th day of December, 1900, the plaintiff's horse was wrongfully and negligently injured by the agents or servants of the defendant while in the prosecution and employment of the business of the defendant to wit, that the defendant wrongfully and unlawfully suffered and permitted an iron spike in said railway, at a point where the public highway crosses said railway in Blocton, Ala., to protrude in and above said highway; that while plaintiff's horse was lawfully in and upon said highway in charge of plaintiff, the same became frightened, and shying, struck his foot in and against said spike and was injured. Hence this suit." As the third count refers to the second count, it is here copied down to the word "warning": "The plaintiff claims of the defendant, a corporation doing business in Bibb county, Ala $900 as damages because, he says, that on the 14th day of December, 1900, plaintiff's horse was wrongfully injured by the carelessness and negligence of the servants or agents of the defendant in manner, to wit: That while plaintiff was riding the said horse in and upon a thoroughfare, which was a public highway, crossed by the right of way used and occupied by the defendant, the servants or agents of the defendant negligently and suddenly went forward with an engine and cars attached thereto without any notice or warning." Third count adds: "And in so being frightened struck his foot in and against a spike which the defendant unlawfully suffered and permitted to be in said highway on its said right of way, the said spike being an obstruction liable to produce injury to persons and animals traveling said highway, and in consequence thereof, was injured." Demurrers were interposed to this complaint as follows: To the first count, because there is no causal connection shown between the alleged negligent act and the alleged injury. It does not allege that said spike was known by the defendant to be in a dangerous condition. It does not allege that the injury occurred at a public road crossing. It is not shown that defendant owed plaintiff any duty at the point the alleged injury occurred. It does not aver that defendant did not use ordinary care to keep the crossing in reasonably safe and convenient condition. It is not shown that plaintiff was in the usually travelled part of the road when the injury occurred. Because it is shown that the act complained of was too remote to cause the damage or injury alleged. Because it fails to state any facts showing wherein the defendant was negligent in allowing the spike to be in the railway at the crossing. And to the third count, same grounds of demurrer and the following additional: Because it contains an improper joinder of causes of action, in that it claims damages for the negligent backing of the train without warning, and also claims damages for the iron spike being in the railway at the crossing. Because said count contains two separate and distinct averments of negligence. The other facts sufficiently appear in the opinion.

The defendant requested the following charges, which were refused: Charge 5: "If the jury believe from the evidence that the said crossing was maintained by the defendant in such manner as to not unnecessarily impair the usefulness of the public road or to interfere with the safe enjoyment of the said road, then the defendant is not liable." (In this connection we give charge 7, requested by and given for the defendant: Charge 7: "If the jury believe from the evidence that at the time of the accident the crossing in question was reasonably safe and convenient for the traveling public, exercising ordinary care and prudence for their own safety, they must find for the defendant." Charge 10: "If the jury believe from the evidence that Hubbard by his own act of negligence proximately contributed to his injury, then the verdict should be for the defendant." Charge 12: "The court charges the jury that the plaintiff cannot recover in this case if the jury believe from the evidence that plaintiff proximately...