Northern Alabama Ry. Co. v. Sides

• Decision Date: 01 June 1899
• Citation: 26 So. 116,122 Ala. 594
• Parties: NORTHERN ALABAMA RY. CO. v. SIDES.
• Court: Alabama Supreme Court

26 So. 116

122 Ala. 594

NORTHERN ALABAMA RY. CO. v. SIDES.

Supreme Court of Alabama

June 1, 1899

Appeal from circuit court, Walker county; James J. Banks, Judge.

This action was brought by William F. Sides against the Northern Alabama Railway Company to recover damages alleged to have been sustained by the plaintiff, by reason of the failure of the defendant to keep in repair a bridge across a public highway. The appeal is from a judgment overruling the demurrer interposed by the defendant to the plaintiff's complaint, and this question is the only one presented for review. Reversed.

R. T Simpson, for appellant.

Coleman & Bankhead, for appellee.

HARALSON J.

Action for damages resulting from a failure to repair a bridge on a public highway. There is little if any substantial difference between the first and third and the second and fourth counts in the complaint. The first and third charge, with but slight variation of language, simple negligence on the part of defendant from which the plaintiff's injury arose, and the second and fourth charge negligence of a wanton, willful and reckless character in defendant from which plaintiff received the injuries complained of. We need refer alone to the averments as to simple negligence, as the question for review arises alone on a demurrer to the complaint, there being no bill of exceptions in the case, and no question of wantonness and willfulness is raised. The first count, from which as stated, the third does not materially differ, after locating the bridge across the public road avers, "And it was then and there the duty of defendant to keep said bridge in repair, but the said defendant then and there disregarding its said duty, did permit the said bridge to become and remain out of repair, preceding and at the aforesaid date, and the plaintiff avers that said bridge was so out of repair, in that there was a hole in said bridge and plaintiff avers that said bridge was out of repair in that the planks of said bridge were rotten, and plaintiff further avers that, at the aforesaid date, he was riding in a wagon drawn by a mule along said public road and across said bridge, and while approaching the said bridge to cross the same, by reason of the said bridge being out of repair as aforesaid, the said mule became frightened at said bridge and jumped across the said bridge causing the plaintiff to fall from the said wagon, and plaintiff's shoulder was then and there dislocated," etc. The demurrer to the complaint was, that it "does not allege that the object at which the mule became frightened, was an object calculated to frighten a horse of ordinary gentleness." From the averments of the complaint, and from the demurrer thereto, it must be ascertained, out of what the cause of action arose. The theory of construction out of which the demurrer grows is, that the complaint alleged that plaintiff's injury arose from the fright of the mule, as its proximate cause whereas the...