Mobile, J. & K.C.R. Co. v. Smith

• Decision Date: 28 April 1906
• Citation: 40 So. 763,146 Ala. 312
• Parties: MOBILE, J. & K. C. R. CO. v. SMITH.
• Court: Alabama Supreme Court

40 So. 763

146 Ala. 312

MOBILE, J. & K. C. R. CO. v. SMITH.

Supreme Court of Alabama

April 28, 1906

Appeal from Circuit Court, Mobile County; Samuel B. Brown, Judge.

"To be officially reported."

Action by Callie V. Smith against the Mobile, Jackson & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The sixth count of the complaint was in words and figures as follows: "(6) The plaintiff claims of the defendant which is a corporation, the sum of $50,000 as damages, for that on the 10th day of September, 1903, while defendant was engaged in the operation of trains upon railroad tracks in Mobile county, Ala., and while plaintiff was in one of the cars at or near Semmes Station, in said county, the servants of defendant, then and there in control of a train of defendant, and then and there acting within the line or scope of their duties as servants of the defendant, wantonly or willfully injured plaintiff's back or spine, and caused plaintiff much suffering and much expense, all to her damage as aforesaid." Demurrers were interposed to this count as follows: (1) Because said count alleges that the injury was inflicted wantonly or willfully, without designating which is relied on as fixing liability on this defendant. (2) Because said count shows that plaintiff was a trespasser on defendant's track, and fails to show that the employés of the defendant failed to do all in their power to avert the injury after her peril was discovered, or ought to have been discovered. (3) Said count seeks to recover of this defendant for wanton or willful negligence, and fails to show any facts constituting such wanton and willful conduct on the part of the plaintiff. Issue was joined on the general issue. There was motion for a new trial on the ground that the verdict was contrary to the evidence and the charge of the court, and on the further grounds that the court erred in refusing to give the affirmative charge requested by the defendant. This motion was overruled. The evidence introduced on the trial showed that plaintiff was living in the caboose of the work train, which was on a siding near Semmes Station; that a train came in from the direction of Mobile, entered the siding with three cars in front of the engine, and as the cars were kicked in they struck the car on which plaintiff was at the time, knocking her down and bruising her spine from which she was confined to her bed some time, and from the nervous shock of which she was disabled for a good long time. It is not shown that the servants of defendant in charge of the train saw or knew that plaintiff was in the car. It was shown that plaintiff's husband was at work for the Gulf City Construction Company, and that said company had a...