Southern Ry. Co. v. Hoge

• Decision Date: 21 July 1904
• Citation: 141 Ala. 351,37 So. 439
• Parties: SOUTHERN RY. CO. v. HOGE.
• Court: Alabama Supreme Court

37 So. 439

141 Ala. 351

SOUTHERN RY. CO. v. HOGE.

Supreme Court of Alabama

July 21, 1904

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by J. F. Hoge against the Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The complaint contains three counts, which were in words and figures as follows: "(1) The plaintiff claims of the defendant corporation three hundred & 00/100 dollars damages for that on and prior to the 4th day of July, 1902, the defendant was operating locomotives, cars or trains over and through the county of Etowah from Rome, Ga., to Attalla Ala.; that on or about said 4th day of July, 1902, the defendant negligently ran its engine, locomotive, cars, or trains over or against two mules of plaintiff, and thereby killing or disabling them, to the damage of plaintiff as aforesaid. (2) The plaintiff claims of the defendant corporation the further sum of three hundred dollars as damages for that the defendant corporation negligently ran its locomotive, train, or cars over and against two mules of plaintiff, so that it killed or disabled them, on or about July 4th, 1902; hence this suit. (3) The plaintiff claims of the defendant corporation the sum of three hundred dollars and for cause of action states that on and prior to the 4th day of July, 1902, defendant corporation owned, operated, or controlled a railway over and through Etowah county, Ala from Rome, Ga., to Attalla, Ala.; that the defendant corporation used in operating said railway trains driven by steam locomotives or engines; that on or about said 4th day of July, 1902, defendant, its agents or employés, ran its train, locomotive, or cars over and against two mules of plaintiff, and thereby killing or disabling said mules, and injuring plaintiff in the sum of three hundred dollars. Plaintiff avers that said injuries resulted from and were caused by the negligence of the defendant, its agents or employés, in the management or control of its locomotives trains or cars; hence this suit." The defendant separately demurred to each of the counts of the complaint upon the following grounds: (1) It does not aver or show where defendant operated its cars, locomotives, or trains. (2) It does not aver or show whether the mules were killed or disabled. (3) It does not aver or show in what the negligence of defendant consisted. The demurrers to each of the counts of the complaint were overruled. Thereupon the defendant pleaded the general issue and the following special plea: "(2) And for further plea in this behalf defendant says that the alleged injury resulted from the negligence of plaintiff, which said negligence consisted in this: The portion of defendant's track where said alleged injury occurred, was in a stock-law district, in which mules were by the law of the state of Alabama prohibited from running at large, and that at the time said mules were so injured they were being allowed to run at large in said territory." To plea No. 2 the plaintiff demurred upon the following grounds: (1) Said plea is no answer to the complaint. (2) The fact that stock was prohibited from running at large in a district where it was killed shows no negligence on the part of the plaintiff, so as to prevent his recovering. This demurrer was sustained, and the cause was tried upon issue joined on the plea of the joint issue.

Burnett, Hood & Murphree, for appellant.

Culli & Martin, for appellee.

HARALSON J.

There was no merit in the demurrer to the complaint, as has in principle been often decided. Choate v. Southern Ry. Co., 119 Ala. 611, 24 So. 373.

The demurrer to the plaintiff...